Corson v. Lewis

Oldham, C. On May 14, 1900, Mary Lewis instituted an action in the district court for Douglas county, Nebraska, against the Omaha Street Railway Company to recover damages for personal injuries. The suit was filed by Will A. Cor-son, an attorney of Douglas county, and the proposed in-tervener in this cause of action. After the suit was filed a demurrer was interposed to the petition by the street railway company and was sustained by the district court. Mr. Corson then employed George W. Cooper, Esq., to assist in the prosecution of the case, and on January 16, 1901, an amended petition was filed, and issues were joined thereon. While the cause, was pending, negotiations for a settlement of the claim were had between Mr., Corson, as attorney for the plaintiff, and Honorable John L. Webster, as attorney for the defendant. While these negotiations were pending, in April, 1902, Mr. Corson became temporarily mentally deranged from nervous pros [447] tration, and was placed in a private sanitarium for treatment, and was treated at different sanitariums without the state until August, 1903, when his health was restored and he returned again to Omaha and reengaged in the practice of his profession. During the time Mr. Corson was receiving treatment his office was closed, and all his books and papers were removed to his residence within the city. Before instituting the suit for Sirs. Lewis, Sir. Corson had entered into a written contract with her husband, who assumed to act as her agent, by the terms of which Mr. Corson was to receive one-half the money procured on the claim either by compromise or judgment, and plaintiff-was to pay the costs of litigation. When Sir. Corson was taken away for treatment, Sir. Cooper went to the court in which the cause was pending, and had his name entered as of counsel for the plaintiff, and procured a continuance of the case on account of the absence of Mr. Corson who Avas the managing counsel. In the meantime Sir. Hove G. Corson, brother of the proposed intervener, requested John W. Parrish, Esq., to look after whatever legal business had been in the hands of his brother, and on October 30, 1902, Sir. Parrish, acting alone and on this .suggestion, and Avithout any conference or communication with Sir. Will A. Corson, as appears from his testimony, filed in the cause then pending a notice of attorney’s lien, as follows: “To the Omaha Street Railway Company, and all other persons concerned: Notice is hereby given that W. A. Corson, attorney for plaintiff in the above entitled action, claims a lien herein for one-half (½) of the amount of whatever judgment is recovered and entered in this suit. W. A. Corson, Atty. for Plff., by John W. Parrish, his agent and attorney.” In September, 1902, and about five months after Mr. Corson’s illness began, Mrs. Lewis, being Avholly unable, as she said, to confer with her attorney, and- having learned that his office Avas closed and that he was in an asylum for treatment, communicated through Mr. Neary with T, J, Mahoney, Esq., and requested him to enter into [448] the prosecution of her suit and conduct it to judgment or final settlement. Mr. Mahoney, knowing the condition of Mr. Corson’s health and believing that he was permanently disabled from practicing his profession, called upon Mr. Cooper, who had been making an unsuccessful effort to find the office files in the case, and the list of witnesses that Mr. Corson had in his possession, and to get ready to try the case, if necessary, to save it from being dismissed, and Mr. Cooper turned the matter over so far as he was concerned to Mr. Mahoney. Mr. Mahoney also ^called upon Mr. Parrish to inquire if he had any connection with the case, and Mr. Parrish explained that he had none, and that all he had done was to file a notice of a lien for Mr. Corson, as above set out. Mr. Mahoney thereupon proceeded to effect a settlement of the cause,- and compromised the claim for $1,200, and in conformity with the stipulation between the parties the cause was dismissed on the 3d day of February, 1903. Mr. Mahoney settled with Mr. Cooper for the services he had rendered, paying him $100 therefor and taking a receipt for his claim for services rendered. At the second term of court after the judgment of dismissal was entered, Will A. Corson filed a motion to set aside the judgment, as haying been entered into collusively and in fraud of his rights to' an attorney’s lien on the money received on the compromise, and also asked leave to file an intervening petition for the determination and enforcement of his lien. His application was tried on affidavits and counter-affidavits, and the motion was overruled and leave to file an intervening petition was denied by the district court. To reverse this judgment the proposed intervener brings error to this court. It is only fair to the professional standing of all the attorneys involved in this controversy to say that there is not a syllable of testimony in the record that even remotely tends to show ány collusion or fraud on the part Of any of them in procuring a settlement of the claim. [449] They each apjjear to have acted with professional courtesy and strict integrity in the matter. It is a principle universally recognized in the courts that a contract for legal services is personal in its nature, and consequently unassignable, and that death or disability, which renders performance impossible, discharges the contract. Now, there is no dispute in the record as to the fact that Mr. Corson, before either procuring a judgment or settlement of the claim, was unfortunately disabled by disease from performing his duties as plaintiff’s attorney, and as he was without authority to assign his contract to anyone else, the contract was annulled, and Mrs. Lewis was fully justified in procuring other counsel to protect her interests in the suit. As there is no valid claim for services existing in favor of the proposed inter-vener and against his client, no lien could attach to any money received in settlement of the claim. In this view of the matter it is unnecessary to express any opinion on the other questions discussed in the briefs. We therefore recommend that the judgment of the district court he affirmed. Ames and Epperson, CC., concur. By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is Affirmed.