Mirasola v. Rodgers , 120 W. Va. 685 ( 1938 )

Rosenbloom and McCamic tendered three intervening petitions in this cause asking to be made parties and praying that Sara Baer also be made a party. Each of the petitions alleges the possession of a note for fifty-five hundred dollars payable to Sara Baer and signed by H. M. Rodgers that petitioners had been employed to collect on a contingent basis entitling them to fifty per cent of the amount collected. The first petition the trial court refused to consider, thereby raising an appealable, and not a certifiable, question. Staud v. Sill, 114 W. Va. 208,171 S.E. 428; Slater v. Slater, 118 W. Va. 645, 191 S.E. 524. There were two other chancery causes of this nature pending in the Circuit Court of Brooke County against Hazlett M. Rodgers in both of which petitioners had filed what they term answers and cross-bills which were set up as exhibits with the petition herein filed.

The petition alleges that Sara Baer, ignoring petitioners' rights, has made a collusive settlement direct with Hazlett M. Rodgers, and that Rosenbloom was an equitable assignee of fifty per cent of Rodgers' note. The petition also contains the following language: "They deny that any payment of the full amount of said note and interest has been made, and further, that any such settlement was collusive and fradulent upon the rights of Benjamin L. Rosenbloom as an attorney practicing in this Court." Consequently, this record, in a manner which we cannot ignore, shows that petitioners directly and categorically contradict the material allegations of their petition. For that reason, I think the trial court was right in sustaining the demurrer to that petition and that the actual question involved under the state of the pleadings does not warrant the docketing of this certification.

What I have just stated is illustrative of a continued ambiguity throughout the argumentative averments of this petition and of the cross-bills (three in number, only two of which are referred to in the petition) filed herewith. A certified question must be free from ambiguity. It is not claimed, nor does the majority opinion hold, that this employment gave to petitioners what is termed a "retaining lien", or a lien upon a client's property professionally in the possession of an attorney, which is to be distinguished from an equitable assignment pro tanto. Neither is it contended that it is what is termed a "charging lien", which is a lien upon the proceeds of litigation. The majority opinion states that the employment resulted in an equitable assignment of a one-half interest in the promissory note. The allegation of the petition is that the employment provided that Sara Baer's attorneys should receive one-half of what they collected. Its allegations also show that they have collected nothing. The employment of an attorney upon a contingent basis may be terminated at any time prior to his having fully performed the purpose of the employment. This entitles him to recover on a quantum meruit for the effort that he has expended. Naturally, this result would not follow if a contingent employment constituted an equitable assignment of any part of the subject matter.

I cannot see the applicability of Bent v. Lipscomb, 45 W. Va. 183, Pt. 1, Syl., 31 S.E. 907, 72 Am. St. Rep. 815. In the Bent case a judgment had been recovered and the attorney had completely fulfilled his part of the contract of employment so that the consideration moving to him no longer rested upon a contingency. His had become a vested right. His lien upon the judgment did not rest upon an equitable assignment but a long established common-law principle. Not so here. Further, the contract in the Bent case was in writing specifically granting the attorney an interest in the judgment which he recovered. Here it is verbal, giving the attorney a right to retain part of a hoped-for collection, which he did not make. Going further, it seems to me that the interpretation of the court's holding in the Bent case should be reconciled to that inTomlinson v. Polsley, 31 W. Va. 108, 5 S.E. 457. There it was held that a client could peremptorily dismiss a pending case in which attorneys were employed whose remuneration rested upon the successful outcome of the litigation, and that the lawyers could then recover on a quantum meruit basis.

Treating this petition as though it did not contain the conflicting allegations I have mentioned, I still do not see how its prayer for general relief entitled petitioners to intervene in a cause in which their former client and contended debtor has no direct present interest and is not a party. SeePappenheimer v. Roberts, 24 W. Va. 702; Richardson v.Ralphsnyder, 40 W. Va. 15, 20 S.E. 854.

I am of the opinion that this cause should not have been docketed, but treating it as properly presenting the questions certified deferentially disagree with the conclusion of my brethren.