Young v. Renshaw

• Decision Date: 03 November 1903
• Citation: 76 S.W. 701,102 Mo.App. 173
• Parties: YOUNG, Respondent, v. RENSHAW et al., Appellants
• Court: Missouri Court of Appeals

76 S.W. 701

102 Mo.App. 173

YOUNG, Respondent, v. RENSHAW et al., Appellants

Court of Appeals of Missouri, St. Louis

November 3, 1903

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. S. P. Spencer Judge.

REVERSED.

STATEMENT.

On the fifteenth day of April, 1901, Emily M. Imboden, as heir at law of the estate of William Renshaw, recovered a judgment in the circuit court of the city of St. Louis, for $ 4,867.55 against Alfred H. Renshaw, trustee under the will of William Renshaw, and the other heirs of the estate of William Renshaw which judgment was declared to be a lien on certain real estate in the city of St. Louis. The cause was appealed to the Supreme Court, where the appeal, after reaching that court, was dismissed by the appellants.

On January 10, 1902, James C. Jones, Esq., presented in the circuit court, where the judgment was rendered, a power of attorney from Emily Imboden authorizing him to enter satisfaction of the judgment decree. Thereupon Alex. Young Esq., asked and obtained leave to file, and did file objections to the satisfaction of the judgment as follows (omitting caption):

"Now at this day comes Alexander Young and states to the court that he was the attorney for plaintiff in the above entitled cause, and obtained a judgment in her favor in said cause; that he did all the legal work in said cause for her pertaining to the cause of action set forth in the petition in said case, both before and after the institution of this suit, up to the time the appeals taken from the judgment of this court by the plaintiff and the defendants were dismissed in the Supreme Court of the State of Missouri; that said appeals were dismissed in said Supreme Court on the ninth day of January, 1902, and that the dismissal of said appeals leaves the judgment and decree of this court in this case in full force and effect. And the said Alexander Young further states and represents to the court that he did said work for plaintiff under a contract of employment, in writing with the plaintiff, by which she agreed to give to said Alexander Young, for his services as her attorney, a fee equal to thirty-three and one-third per cent of whatever might be recovered. And it was further agreed and stipulated in said agreement that neither party should settle or compromise said cause of action unless with the consent of the other. A copy of which said contract is hereto attached and marked 'Exhibit A.' and made part hereof. And the said Alexander Young further represents and shows to the court that the said judgment recovered by him for the plaintiff in this cause, principal and interest, now aggregates the sum of $ 5,100. That on the twentieth day of November, 1901, he duly served the defendants with notice of his said contract with the plaintiff, the said notice being duly accepted by defendants' attorney of record in this case. A copy of said notice, with acceptance of service thereof, is filed herewith and marked 'Exhibit B' and made a part hereof. And that no part of said fee has ever been paid.

"Wherefore, said Alexander Young says that under the laws of the State of Missouri, he has a lien upon the said judgment in this case for his fee. That he has reason to believe, and does believe, that the plaintiff and defendants herein are intending to defraud him out of his said fee, and all of them, living in distant States, are attempting to effect a settlement amongst themselves so as to deprive him, the said Young, of his said legal fees. And as a part of said attempt the plaintiff herein has given to James C. Jones a power of attorney, which has been filed with the papers in this case, authorizing and directing him to enter the said judgment in this court, rendered in her favor, satisfied. The said Alexander Young further states and shows to the court that in prosecuting the plaintiff's said cause of action, and preparing and getting same ready for trial, though not obligated so to do by his contract, he was compelled to and did lay out and expend a large amount of money. He further says that the plaintiff is wholly insolvent, having no other property or assets save and except the said judgment recovered for her by him, and to permit her to enter said judgment satisfied without paying him, the said Young, his fee, would be to deprive him altogether of his compensation for his service rendered, which would be utterly unjust and inequitable and contrary to and against the rights secured to him by the laws of the State of Missouri.

"Wherefore, the said Alexander Young earnestly protests and objects to said judgment being satisfied by the plaintiff or her attorney in fact until his fee is paid. And he further asks that this court, upon hearing of the evidence, will order and declare a lien for his fee against said judgment, and in the event the same is not paid within a reasonable time, then the said lien may be enforced by the proper order and execution of this court.

"ALEXANDER YOUNG.

"Sworn and subscribed to before me this fifteenth day of January, 1902.

"HENRY TROLL, Clerk."

With his objections he filed the following memorandum agreement marked "Exhibit A:"

"This memorandum of agreement, made this twenty-second day of May, 1900, by and between Emily Morrison Renshaw Imboden of the city of New York, party of the first part, and Alexander Young, of the city of St. Louis, Missouri, party of the second part, witnesseth:

"That the said party of the first part has employed and retained the party of the second part as her attorney, to establish and recover her rights and interests in the estate of her grandfather, William Renshaw, Jr., lately deceased, and also to establish and recover any right or interest she may have in the estates of her great-grandfather, Joseph S. Morrison, who died in the city of St. Louis in September, 1851, and upon whose estate the said William Renshaw, Jr., administered. And the party of the second part, as such attorney, is hereby fully authorized and empowered to take such steps as he may deem necessary to accomplish the results herein contemplated. And for his services in her behalf the said party of the first part agrees to pay the party of the second part a compensation equal to one-third of whatever may be recovered, whether in money or property, or whether recovered through suit or compromise; but it is understood that no compromise shall be made unless both parties to this agreement consent thereto. And for the compensation herein provided for, the party of the second part agrees to give his best efforts to recover the said interests, and to take all legal steps necessary to establish and recover the same; it being understood and agreed that the party of the second part is not to receive any compensation for the services he may render in the matter referred to unless something is received or recovered, and then only as herein provided.

"In witness of all which, the parties of the first and second part have signed this agreement, in duplicate, the day and date first herein written.

"EMILY M. IMBODEN,

"ALEXANDER YOUNG."

He also filed the following other exhibit (omitting caption) marked "Exhibit B:"

"To the defendants in the above entitled cause.

"You are hereby notified that I have a contract in writing with the plaintiff in said cause, by which and whereby she agrees to give me, for my compensation as her attorney therein, one-third (or thirty-three and a third per cent) of whatever may be recovered for her in said case, whether the same be by settlement, compromise or judgment.

"ALEXANDER YOUNG.

"Received copy of foregoing the twentieth day of November, 1901.

"CHESTER H. KRUM,

"Attorney for Alfred H. Renshaw and other defendants."

The objections to the entry of satisfaction were sustained by the court, whereupon Alexander Young filed the following motion for execution (omitting caption):

"Now at this day comes Alexander Young and states to the court that he was the attorney for the plaintiff in the above entitled case, and as such obtained the judgment therein; that said judgment is in full force; that as such attorney for the plaintiff he had a contract with said plaintiff for a fee equal to one-third of whatever might be recovered, by judgment or otherwise; that the said judgment was recovered in this case for $ 4,876.55, and was rendered on April 8, 1901, with a lien against the property mentioned in the petition and decree; that his fee has never been paid, and that he has a lien under the law for his said fee against said judgment, and that the defendants refused to pay it, that the plaintiff is insolvent and that he can only receive the benefit of the said lien by having an execution issue for the amount due him, as provided in the said contract, and of all of which the defendants have due notice, as heretofore shown, in the objections that he filed against the satisfaction of said judgment, which objections were sustained by the court.

"Wherefore he asks for an order requiring the clerk of this court to issue an execution, to his use, on said judgment for the amount due him.

"ALEXANDER YOUNG."

The motion was sustained and an execution was issued directing the sheriff to levy upon the lands, upon which the judgment of May 15, 1901, declared that Emily Imboden had a lien, for the payment of the amount found to be due Alexander Young under his contract with Emily Imboden.

On October 13, 1902, appellants filed a motion to quash the execution on the following grounds:

"That the execution is void for want of authority and jurisdiction in the court to issue it.

"That the execution was issued without authority from the plaintiff and not at her instance, but at that of Alexander Young Esq., in his own behalf.

"That...