Sizer v. Midland Valley Railroad

Hast, J., (after stating the facts). There is no hill of exceptions, andthis court can only review the judgment of the court below for errors appearing on the face of the record. The pleadings are a part of the record and need not be set forth in a bill of exceptions. London v. Hutchens, 80 Ark. 410; Jones v. Jackson, 86 Ark. 191, and Morrison v. St. Louis & San Francisco Ltd. Co., 87 Ark. 424. The petition of the attorney is one of the pleadings in the case and is a part, of the record proper. The contract between the attorney and the plaintiff in the personal injury action, and which is filed as an exhibit to the petition, is the foundation of the action and is therefore also a part of the record proper. Sorrells v. McHenry, 38 Ark. 127; Newton as Collector v. Askew, 53 Ark. 476; Hudson v. Newton, 83 Ark. 223, and North State Fire Ins. Co. v. Dillard, 88 Ark. 473. The judgment of the court below recited that the court found that the material allegations of the intervener’s petition were sustained by the evidence and that under the contract, if valid, he was entitled to recover his attorney’s fees in the sum of $3,718.33 with the statutory lien for same on the railroad’s property. He was denied relief, however, solely on the ground that his contract was void. It is well settled in this State that no bill of exceptions is necessary where the judgment of the lower court reciting the facts shows error on its face. Shattuck v. Lyons, 62 Ark. 338; Shane v. Dickson, 111 Ark. 353; Baucum v. Waters, 125 Ark. 305; Davis, Admr., v. McCandless, 130 Ark. 538, and First National Bank of Fort Smith v. Thompson, 124 Ark. 161. In the last mentioned case the court held that a cause will be reversed where the court’s rulings of law are inconsistent with his findings of fact. In the case at bar the court found the facts in favor of the attorney but denied him relief on the ground that his contract was void and that he could not recover thereunder. It results from the views we have expressed that, in determining whether the conclusions of law of the court are inconsistent with its findings of fact, we may consider the record proper, and that includes the petition of the attorney, the contract between the attorney-and client, which was made an exhibit to the petition and is the foundation of the action and the judgment itself. Counsel for the railroad company seek to uphold the judgment upon the authority of Davis v. Webber, 66 Ark. 190. In that case the court held that a stipulation in a contract for an attorney’s fee for prosecuting a suit that the client shall not settle the suit without the attorney’s consent was' void as against public policy; and that if such stipulation was not severable from the rest of the contract, but was an inducement for entering it, the entire contract was void. In that case the attorney sued his client to recover for services as attorney under a certain' contract and to enforce his statutory lien for the amount due him upon certain property recovered. The contract in that case, as in the case at bar, contained a clause that the client should make no settlement or compromise of the case without the consent of his attorney. The court said that this clause was fatal to. the entire contract and was not severable from it because it seemed to have been the inducement for entering upon the contract. The reason given was that, under our statute as it then existed, when any judgment was recovered in a court of record in favor of any party, his attorney in the action had a lien upon an interest in the judgment for the amount of his fee which could be enforced in a proceeding in the court in which the judgment was rendered. The court said after judgment was rendered the parties to the suit might settle if they wished, but, before there could be any satisfaction of the judgment, the attorney’s fee should be paid. Before judgment, however, the attorney could only trust the integrity and judgment of his client not to compromise without advising him and making arrangements about his fee. In short, under the statute as it then existed the parties to the suit could settle the case before judgment and thus deprive the attorney of his lien upon the property for any claim upon the adversary party. Thus it was of distinct advantage to the attorney to have a clause in the contract providing that the case should not he settled without his consent. Such a clause, if enforceable, would also be of disadvantage to the adversary party, for it would prevent him from compromising or settling the case. For this reason the clause was held not to be severable and to avoid the entire contract. Our present statute is essentially different. Under it the lien which the statute gives the attorney follows the cause of action throughout without interruption and attaches to that in which the right of action is merged. If judgment is obtained, the lien attaches to that; if compromise or settlement is made either before or after judgment, the lien attaches to that, and in each case the attorney’s interest is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent. St. L., I. M. & So. Ry. Co. v. Hays & Ward, 128 Ark. 471. In that case the court held that, while the parties to the suit have the right to settle it, the attorney’s lien act requires that they shall take into consideration the fact that the attorney has a lien upon the cause of action and provides for its enforcement in the action, to the end that the parties may not ignore his lien and deprive him of his rights under his contract with his client. Thus it will be seen that under the present attorney’s lien statute no advantage could accrue to the attorney by inserting a clause providing that the client should not settle the case without his consent and the adversary party could not be hurt by the insertion of such a clause; for, as we have already seen, this clause could not prevent the parties from settling, and in the event that they did settle the attorney had a lien for his fee which the adversary party could not ignore. In other words, the railroad company was under no obligation to observe such an agreement, and it could not deprive it of its right to compromise the action, but under the statute it could not ignore the attorney nor deprive him of his fee, whether the compromise was made before or after judgment. In Newport Rolling Mill Co. v. Hall, 144 S. W. 760, the Court of Appeals of Kentucky in discussing a similar question said: “It is maintained by counsel for appellant, and there is authority to support it, that this stipulation vitiated the entire contract, while it is insisted for appellee that the contract is divisible, and that the obnoxious clause can be stricken out and the remainder of the contract sustained. It is often quite difficult to determine whether a contract is severable or entire, and this question fre-' quently arises in the construction of contracts, parts of which are valid and parts invalid. The general rule is that, if the obnoxious feature of a contract can be eliminated without impairing its symmetry as a whole, the courts will be inclined to adopt this view as the one most likely to express the intention of the parties; but, if the good and bad are so interwoven that they cannot be separated without altering or destroying the general meaning and purpose of the contract, the good must go with the bad, and the whole contract be set aside.” In the application of this rule we think the contract in the case at bar is a severable one and that the clause against a compromise without the consent of the attorney may be eliminated without affecting the validity of the remainder of the contract. The principal consideration of the contract was the obligation upon the part of the attorney to give his legal services to the client in the action and the agreement upon the part of the client to pay the attorney a stipulated sum for his services. The payment of the services of the attorney could not be defeated by any settlement of the case and could in no way injure the client or his adversary. Therefore we are of the opinion that the contract in question was a valid and binding one. The case of McClain v. McFarlane, 135 Ark. 602, relied upon by counsel for the railroad company, does not in anywise conflict with the views we have herein expressed. The court in that case said that the contract under consideration did not contain a clause which prevented the client from settling his claim without the consent of his attorney, but that it only provided that the lawyer could not make a settlement without the consent of his client. Hence the question involved in the case at bar was not in issue in that case and was not decided. Finally, it is insisted that the contract was made without the State and for that reason is not enforceable. But little need be said with regard to this phase of the case.. The contract contemplated that it was to be performed in Arkansas, and the suit was in fact brought here. Therefore the law of this contract was in Arkansas. Midland Valley Rd. Co. v. Moran Bolt & Nut Manufacturing Co., 80 Ark. 399. In that case the court held that a contract is to be construed with reference to the law of the place of performance and not of the law of the place where it was originated. It follows that the judgment must be reversed, and the cause will be remanded for a new trial.