Zerkowsky v. Zerkowsky

• Decision Date: 05 January 1931
• Docket Number: 28372
• Court: Mississippi Supreme Court
• Parties: ZERKOWSKY v. ZERKOWSKY

131 So. 647

160 Miss. 278

ZERKOWSKY v. ZERKOWSKY

No. 28372

Supreme Court of Mississippi

January 5, 1931

(In Banc.)

1. ATTORNEY AND CLIENT. Absent assignment to attorneys of interest in cause of action, complainant in good faith, may dismiss suit without attorneys' consent, notwithstanding attorneys' fee is contingent (Code 1930, section 505).

Laws 1916, chapter 134, Code 1930, section 505, authorizes assignee of any chose in action to sue for and recover on same in his own name if assignment be in writing. Section further provides that, if assignment of interest in any chose in action is made in writing to attorneys appearing in case it shall be sufficient notice to all parties of assignment or transfer if assignment is filed with papers in cause, and that such attorneys shall not be required to be made parties to suit.

2. APPEAL AND ERROR.

Unsuccessful complainant is under no obligation to appeal, and therefore may dismiss appeal.

3. ATTORNEY AND CLIENT.

Appellant may dismiss appeal notwithstanding objection of attorneys without being first required to discharge attorneys with court's consent.

HON. R W. CUTRER, Chancellor.

APPEAL from chancery court of Adams county, HON. R. W. CUTRER Chancellor.

Suit by Seaman Zerkowsky against Charles Zerkowsky. From a decree dismissing the bill, complainant appeals. On motion by plaintiff's attorneys to revive suit against defendant in the name of his executors, on motion filed by complainant in person praying for permission to dismiss the appeal, and on motion by complainant's attorneys to strike motion to dismiss. Motion to strike the motion to dismiss the appeal overruled, motion to dismiss the appeal sustained, and appeal dismissed.

Motion overruled, and sustained, and appeal dismissed.

Brandon & Brandon and Kennedy & Geisenberger, all of Natchez, for appellant.

Sometimes a collusive settlement is made between the parties for the purpose of defrauding the attorney of his fee before any judgment or decree has been obtained. Where there is an evident intention thus to cheat the attorney, and to defraud him of his rights, the proper course for the attorney to pursue is to proceed with the suit in the name of his client, notwithstanding the collusive settlement, for the purpose of collecting his costs.

Hanna v. Ireland Coal Co. , 51 Am. St. Rep. 246; Jackson v. Stearns, 84 P. 798; Note 5 L. R. A. (N. S.) 390.

When an appeal is taken to the supreme court of the state by any party, the jurisdiction to determine the cause is thereby transferred to that court, and any subsequent disposition made of the case can only be made with the consent of the court. It is true, ordinarily, that the parties may withdraw their appeal, or make any other disposition of the case which they may choose to make, pro vided it be not inconsistent with the duties of the court, or in any way invasive of the province of the court; but even then it can be done only when all the parties legally or equitably interested in the subject-matter of the litigation agree, and the court consents. When the appeal is taken, and the appellate court obtains jurisdiction of any cause, the court will allow no disposition to be made of the cause by the nominal parties where it is made to appear to the court that it is reasonably probable that the interest of third parties, having an equitable interest in the suit, though not actually parties to the record, will be destroyed or prejudiced.

Sivley v. Sivley, 50 So. 552.

Green & Green, of Jackson, for appellant.

A plaintiff in error in this court cannot withdraw a writ of error over the objection of his counsel, when it appears that the litigation is such that it would, if successful, result in a recovery of property on which counsel would have a lien for fees earned in the case. The principle is the same where it appears that the fee of the attorney is contingent.

Richmond County v. Richmond County Reform Inst., 81 S.E. 234, 141 Ga. 457; Walker v. Equitable Mortg. Co., 40 S.E. 1010.

Where an attorney at law is once admitted to represent a party in a suit, he cannot be discharged and another attorney substituted, until the suit is ended, unless with the consent of the court. This leave of court must be obtained by a proper proceeding for the purpose, as by motion, and in England, as also in some states of this country, an attorney cannot be changed without an order of court.

2 R. C. L. 961; De Armond v. Fine, 111 Miss. 737, 72 So. 143.

It is indispensable to the decorum of the court, and to the due and orderly conduct of a cause, that the attorney have the management and control of the action, and that his acts go unquestioned by anyone except the party whom he represents. So long as one remains attorney of record, the court cannot recognize any other as having the management of the case, and his right to control and manage the action cannot be questioned by the opposite party.

Bogle v. State, 155 Miss. 612, 125 So. 99.

An attorney's remedy in a case of collusive settlement is not in equity by injunction, but he can apply to the court in which the action is pending, and ask to have the case proceed to final judgment in the name of his client, for his own benefit.

Burkhart v. Scott, 68 W.Va. 694, 72 S.E. 784.

The trend of the modern decisions of the court is to protect the right of the attorney to receive compensation for his services.

Ingersoll v. Coram, 211 U.S. 335, 365-368, 53 L.Ed. 208, 228-230, 29 S.Ct. 92; McGowan v. Parish, 237 U.S. 285, 35 S.Ct. 543, 59 L.Ed. 955; Barnes v. Alexander, 232 U.S. 117, 58 L.Ed. 530, 34 S.Ct. 276.

The right of an appellant to dismiss his appeal is not absolute, but can be exercised only by leave of the court, which will usually be granted unless some special reason be shown for refusing it.

Sivley v. Sivley, 96 Miss. 134, 50 So. 552.

Although the contract is not literally performed, if the client, as the result of a compromise, receives all that he would have received in the event of a literal performance the attorney is entitled to the agreed compensation.

Moran v. L'Etourneau, 118 Mich. 159, 76 N.W. 376; 6 C. J. 744.

The rule in this state has always been that an attorney has a lien on the funds of his client for the services ren dered in the proceeding by which the money was collected.

Halsell v. Turner, 84 Miss. 434.

Brandon & Brandon and L. T. Kennedy, all of Natchez, and Green & Green, of Jackson, for appellant.

When a party has employed an attorney to prosecute an action, such attorney ought to be consulted if a compromise of such action be sought, and ordinarily it would be an act of bad faith on the part of the client and the opposite party to compromise the action without the consent or without consulting such attorney.

Bussian v. Milwaukee, 56 Wis. 335.

Engle & Laub, of Natchez, for appellee.

Where an attorney has a contingent fee based upon recovery and loses his suit in the lower court, he has no liquidated interest and in fact no sufficient interest to oppose the dismissal of the appeal.

4 C. J. 563, 593; Saratoga Gas Company v. Town, 67 Hun. 645, 22 N.Y.S. 342; San Pedro Railroad Company v. Salt Lake City Board of Education, 35 Utah 13, 99 P. 263.

Where there is an agreement for a contingent fee, the happening of the contingency is a condition precedent to the right of the attorney to recover for his services, and the precise event which was contemplated must happen.

6 C. J. 743.

An agreement by a client to pay his attorney a reasonable compensation for his services, payment to be made out of the proceeds of a proposed lawsuit, does not amount to an equitable assignment of an interest in the subject matter of the litigation.

Story v. Hull, 143 Ill. 506, 32 N.E. 265 (affirmed 41 Ill.App. 109).

Though the plaintiff agrees to give his attorney, for his services, a part of the judgment he recovers, he may compromise and dismiss the suit without the attorney's consent.

Mosely v. Jamison, 14 So. 529, 71 Miss. 456.

A provision in a contract between an attorney and client which prohibits a settlement of the client's claim without the attorney's consent is against public policy.

Cochran v. Henry, 65 So. 213, 107 Miss. 233; N. O. & N.E. R. R. Co. v. Tally & Mason, 69 So. 186, 109 Miss. 393.

County is not liable to attorney assigned interest in suit on compromise with plaintiff who had accepted consideration for right-of-way for road.

Grantham v. Lamar County, 114 So. 33, 148 Miss. 148.

A client for whom an attorney filed a caveat in a will contest, under a contract stipulating that the attorney was to have one-fourth of whatever should be recovered from the estate was held not to be liable to the attorney for one-fourth of the amount which the client received as the result of the setting aside of the will by others after the client had withdrawn from the contest.

Boyd v. Johnson, 145 Md. 385, 125 A. 697; Western U. Tel. Co. v. Semmes, 73 Md. 9, 20 A. 127.

A client may at any time for any reason satisfactory to him, however arbitrary, discharge his attorney, and his settlement of the case without consulting his attorney is not a breach of the contract; but the attorney is limited to recovery of the reasonable value of services rendered.

Marquam v. Vachon, 7 F.2d 207; Central Loan Company v. Russell, 16 F.2d 35; United States v. McMurtry, 24 F.2d 145.

The power of a court to protect an attorney who has taken a case on a contingent fee against voluntary dismissal by a client without the attorney's consent is found in a case note in 14 L. R. A. (N. S.) at page 1095.

Parties have a right to settle their suits, in good faith, over the protest of their attorneys having a contingent interest, the settlement or dismissal being in good...