Opinion
10-16-1952
JONES v. WELLINS' ESTATE et al. * Civ. 19124.
David Sokol, Macbeth & Ford, Vincent J. Blumberg and Patrick H. Ford, Los Angeles, for respondents.
JONES
v.
WELLINS' ESTATE et al. *
Oct. 16, 1952.
Rehearing Denied Nov. 6, 1952.
Hearing Granted Dec. 11, 1952.
Arthur A. Jones, in pro per.
David Sokol, Macbeth & Ford, Vincent J. Blumberg and Patrick H. Ford, Los Angeles, for respondents.
McCOMB, Justice.
Plaintiff appeals from a judgment in favor of defendants after trial before the court without a jury in an action to recover an attorney's fee.
Facts: September 25, 1950, plaintiff, who is a lawyer, sued a former client, Mrs. Martin, for $12,000 attorney's fees under a written contract dated April 2, 1948. This contract entitled plaintiff to a fee of $65 plus 50% of 'any money or property paid, received, or collected, by action, compromise or otherwise upon or in satisfaction of any claim, or recovery made, incident to, or as a result of the said services' rendered by plaintiff in collecting a claim which Mrs. Martin had for alleged assault and battery against defendant union. The contract further provided, 'This retainer shall operate as an assignment pro tanto to said attorney, of any claim or right of recovery * * * and of anything received or collected thereon or of judgments obtained thereon.'
After employing plaintiff Mrs. Martin discharged him and substituted as her counsel defendant Wellins who effected a settlement of Mrs. Martin's claim for $20,000, of which he retained $8,000 for attorney's fees, giving $8,000 to Mrs. Martin who left California. Upon learning that Attorney Wellins had agreed to settle Mrs. Martin's claim with the union, plaintiff notified the union that he had a lien upon the funds in their hands which they were going to pay to Mrs. Martin. The union's attorney made an oral agreement that he would notify plaintiff in the event any settlement should be effected with Mrs. Martin so plaintiff might levy an attachment on the money.
On April 16, 1951, the $20,000 compromise was arranged and the attorney for the union issued his check to attorney Wellins, Mrs. Martin and an insurance company which claimed a $4,000 lien for workmen's compensation paid to Mrs. Martin. The payees endorsed this check and deposited it in Wellins' account in the California Bank.
On April 17, 1951, attorney Wellins paid $4,000 to the insurance company and with the consent and at the instruction of his client paid $8,000 to himself for his legal services and paid the balance to Mrs. Martin.
April 16, 1951, the attorney for the union tried to notify plaintiff of the compromise by telephone, and on April 17, 1951, such notice was given, at which time plaintiff made no protest to the payment made by the union to Attorney Wellins, nor did plaintiff make any claim that any of his rights had been violated, nor assert any lien on the fund before payment was made.
During the course of the present proceedings plaintiff twice made and executed affidavits for attachment in which he claimed that defendants were indebted to him upon a contract for the direct payment of money and that the payment was not secured by any mortgage, deed of trust or lien upon real or personal property.
Questions: First: Did plaintiff have any claim against the estate of Marvin Wellins, deceased?
No. Section 707 of the Probate Code provides that no action may be maintained against an estate or an administratrix upon a contract without first presenting a claim against the estate as provided by the provisions of section 702 of the Probate Code.
In the instant case there was no evidence that such claim had ever been presented to the estate of Marvin Wellins, deceased, and the trial court properly found that no claim had ever been presented and plaintiff was barred from recovery.
Second: Was plaintiff's claim for a lien against the other defendants barred because of the fact that he had waived such lien?
Yes. The trial court found, supported by substantial evidence, that plaintiff had waived any lien he might have to funds in the hands of the other defendants by executing the two affidavits for the purpose of obtaining an attachment, in which he stated that his claim was not secured by any lien upon real or personal property. This constituted a waiver of any claim of a lien he might have had. (Wingard v. Banning, 39 Cal. 543, 548.)
In view of our conclusions it is unnecessary to discuss any other questions presented by counsel.
The judgment is affirmed.
MOORE, P. J., and FOX, J., concur. --------------- * Subsequent opinion 256 P.2d 905.