Telander v. Telander

WHITE, J.

This is a motion by respondent Tell Munson Telander to dismiss an appeal taken by appellant William Ellis Lady from an order of the Superior Court of Los Angeles County made December 21, 1942, denying his motion for an order fixing and determining compensation to be paid

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him for professional services which he as an attorney allegedly rendered to plaintiff in this action, and from the further order of the court granting the motion of plaintiff Mary M. Telander for a substitution of attorneys.

As grounds for his motion respondent urges: (1) That the orders appealed from herein are not appealable orders as contemplated by subdivisions -1 or 2 of section 963 of the Code of Civil Procedure. (2) That the appellant is not an aggrieved party as contemplated by section 938 of the Code of Civil Procedure. (3) That the appellant has no interest in the subject matter of this action or in a contingent fee as contemplated by section 284 of the Code of Civil Procedure or .otherwise. (4) That no “final judgment” has been rendered in this action requiring any affirmative act on the part of appellant or otherwise entitling him to bring this appeal. (5) That appellant and respondents stipulated in open court below that the balance of attorneys’ fees, if any, (over and above an allowance made by order of court on August 6, 1942) should be fixed and determined at the time of the trial of the above entitled action. (6) That no trial of said action has been had.

Briefly, the factual background here present may be thus epitomized. Prior to July 27,1942, plaintiff Mary M. Telander employed appellant William Ellis Lady, who is an attorney at law, to institute an action against her husband, defendant herein, for separate maintenance. We think it may fairly be stated that the record shows that attorney Lady’s agreement with his client was that he was to obtain his compensation from the defendant husband through appropriate orders to be made by the court in the separate maintenance action. In any event, after the action was commenced, and upon hearing following issuance of an order to show cause re alimony pendente lite and attorney’s fees, the court made its order directing defendant husband to pay plaintiff’s counsel, appellant herein, the sum of $250 attorney’s fees and $50 costs. The order further provided “.by stipulation the balance, if any, to be fixed at the time of trial. ’ ’ Pursuant to the terms of such order, the amounts named therein were paid by defendant husband to appellant. Subsequently the latter’s client effected a reconciliation with her husband and they entered into an agreement settling and determining their respective property rights. Following such reconciliation plaintiff wife requested appellant, as her attorney, to dismiss the separate maintenance action. This appellant refused to do, contending