Murphy's Estate ( 1917 )

Opinion by

Mr. Chief Justice Brown,

Appellant’s petition in the court below was for a rule on the appellee, a member of the bar, to show cause why he should not be ordered to pay oyer to her $2,000, moneys which she alleged were in his hands, but belonged to her, less such sum as the court might adjudge proper for professional.services rendered. The averments upon which the appellant relied in asking for the rule appear in her petition for it, to be found in the reporter’s notes. An answer was filed to the rule to show cause, and this was followed by a replication. Before any testimony was taken appellee moved to dismiss the petition, for the reason that the court had no jurisdiction of his person or of the matter in controversy. From the order sustaining that motion there is this appeal.

If from the pleadings it had appeared to the court below that the appellee had misbehaved himself in his office as an attorney practicing before it, or that the money which he retained was under its jurisdiction, it clearly could have punished the offending practitioner, or required him to turn over the moneys in his hands to the estate to which they belonged; but no such situation was presented, and the court correctly held that it was without jurisdiction to grant relief to the appellant, if she was entitled to any.

The transaction of which the appellant complains was between her and the appellee alone. After the award of $4,500 to her out of the estate of her deceased husband had been paid to her by a check drawn to her order by the executor, and delivered to her, that sum no longer formed any part of the estate of the deceased, and the Orphans’ Court ceased to have jurisdiction over it. After receiving the check she endorsed it over to the appellee, her attorney, and there is no averment -that he procured it from her by fraud or mistake. He deposited it to his own credit in bank and gave her his check for $2,500, retaining the balance for his services under a distinct averment in his answer that his retention of the $2,000 was in pursuance of an express contract between him and the appellant that he should be paid that sum for his professional services, and, in addition thereto, his actual expenses incurred in acting for her. She, on the other hand, avers that the agreement between them was that the compensation for his services was not to exceed $500. The controversy between her and him is in no manner connected with the administration of Murphy’s estate, over which the court below had jurisdiction. The simple question to be settled in a proper forum is the amount to be paid by one living person to another for services rendered. That question can be settled only in the Common Pleas. The. terms of the contract are in dispute, and what they really were is a fact to be settled in the Common Pleas, and nowhere else. There it must be determined whether the contract upon which the appellee relies was entered into by the appellant, and is 'a conscionable one, under all the facts in the case, or the appellant is to pay no more than she avers was the contract with the appellee for his services. The case is an ordinary one, growing out of a contract between living persons, and neither over its disputed terms nor the parties to it has the Orphans’ Court any jurisdiction.

“An attorney who has money in his hands which he has recovered for his client, may deduct his fees from the amount, and payment of the balance is all that can be lawfully demanded”: Balsbaugh v. Frazer, 19 Pa. 95. Tf there be a dispute as to the terms, of an agreement as to the fees to be paid, the question becomes one of fact, and “a man does not lose his right to trial by jury because he is an attorney-at-law”: In re Rule on R. P. Kennedy, 120 Pa. 497, 503.

Appeal dismissed at appellant’s costs.