Boland v. Reiley, Carlton Hendon

Opinion by LOGSDON, C. Numerous errors are assigned by plaintiff in error, but in the view taken of the case here it will only be necessary to consider the fourth and fifth assignments, which aillege that the judgment is contrary to the evidence and contrary to law. It appears that the original action, was commenced by Ola Patrick in the district court of Pottawatomie county, April 16, 1922. On April 25, 1922, Ola Patrick filed in the clerk’s office in writing a dismissal of Said cause with prejudice, without notice to her attorneys of such action on her part. On. April 29, 1922, the defendants in error, who were attorneys- for Ola Patrick in the original action, filed their motion in that action to set aside the order of dismissal and to reinstate the action, and their motion contained a prayer for judgment against the defendant, Boland, establishing- their lien as attorneys-, and to foreclose the same for the sum of $3,333.33. Notice of this motion was served on the plaintiff in error and the hearing on said motion was set in the trial court for May 29, 1922. When the hearing opened the attorneys for plaintiff in error suggested the death of the original plaintiff, Ola Patrick, and objected to the introduction of any testimony in support of the motion to reinstate the cause and for judgment until the action should be revived. This objection was by the court overruled, and at the conclusion of the hearing an order' was entered by the trial court setting aside the dismissal and reinstating the cause, and thereupon a judgment was rendered in favor of the defendants in error and against the plaintiff in error for the said sum of $3,333.33, and establishing and foreclosing their attorney’s lien. It is clear from this statement- of the situation that at the date of the hearing on the motion to set aside the dismissal, to reinstate the action and for judgment for attorneys’ fees the original plaintiff’s cause of action had abated by her death subject to being reviewed within one year. No motion was made for and no order entered reviving the action after her death was suggested, and it is very clear that the trial court was without authority to make any order or to hear ' any testimony affecting the merits of that case until after the action had been revived. For this reason the order of the trial court purporting to -reinstate the cause and the judgment thereupon rendered in the action were contrary to law and unauthorized. More than 12 months have now elapsed since the death of ihe original plaintiff in the action, and a revivor thereof can now be had only by consent. But by the provisions of Comp. Stat. 1921, sec. 4102, the lien of the attorneys, if they are entitled to a lien, may be enforced by an independent action in a court of- competent jurisdiction. Since the time for -revivor of the original acton has expired and it can now be revived only by .consent, this court cannot assume that such consent will be given, and without it a mere reversal of this case for a new trial would effectuate no final determination of the questions here involved. If defendants in error are entitled to recover under their claim of lien, they have a full, complete. and adequate remedy by independent action. For the reasons herein stated, this cause should be reversed and remanded, with directions to the trial court to vacate its order reinstating the original action and to *109 dismiss the motion of defendants in error without prejudice to the bringing of an independent action. By the Court: It is so ordered. Note. — See under (1) 6 C. J. p. 799, § 414 (1926 Anno). (2) 6 C. J. p. 799, & 414 (1926 Anno).