McLaughlin v. Goucher

CRAIG, J.

Suit having been filed praying an alternative judgment for partition or the sale of certain real property and division of the proceeds, an interlocutory judgment was granted in favor of the plaintiff, from which the instant appeal was taken.

From the pleadings and the evidence it appeared without contradiction that the respondent and his co-partner, attorneys at law, had rendered services to the appellant in successfully pursuing certain community property and obtaining for the latter a judgment for his share thereof. They had previously been employed by a contract in writing to prosecute all necessary litigation in that behalf for “15% of any and all property that may be declared to be community property and going to the party of the first part from and out of the property ... ”, or, “in the event of a compromise and settlement being had

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and effected . . . before suit is brought, then in that event the party of the first part agrees to pay to the parties of the second part the sum of five hundred dollars ($500.00) cash, at the time of the said settlement and compromise”. In the instant case issue was joined, and by affirmative defenses it was alleged that the respondent and a co-defendant not a party herein had filed and that there was pending for the same cause an action for $7,000 as reasonable value of services rendered; and that the instant suit was barred by sections 318, 319, 337 and 343 of the Code of Civil Procedure. Upon the trial it was also contended that the respondent having successfully sought a partition for, and established the title of, the appellant in the described premises, he was estopped to claim an interest therein, and that his demand herein amounted to a collateral attack upon the final judgment. Simultaneously it was and is asserted that by the present action the respondent sought to recover double compensation for the same services. The trial court found as true the allegations of the complaint, rejecting the appellant’s said defenses.

We think the apparent conclusion of the claims and divergent theories can best be clarified by segregation of the several judicial proceedings involving the properties in controversy. The suit from which the instant case arose was instituted for the purpose of establishing as community the bulk holdings of the appellant and his then spouse. During its pendency the latter filed a suit praying a decree of divorce and an adjudication thereof as her separate estate, to which the appellant herein interposed a cross-complaint alleging its community status and praying that the same be equally divided. Said actions were consolidated and tried together, judgment being rendered in favor of the appellant in each instance, but only awarding each party thereto an undivided one-half interest in the whole. Thereafter the appellant commenced and successfully prosecuted to conclusion a separate and independent suit for partition, by his complaint praying an allowance of reasonable attorneys’ fees therein, in which he was also represented by said counsel. The respondent and associates represented him and conducted all of said litigation, but were in no instance compensated in any amount. Respondent has received neither the fees allowed to Goucher by the court for parti