Kelly v. Smith

CURTIS, J.

Plaintiff instituted this action against the defendant to quiet his title to seven lots in the city of Tulare. Plaintiff held a tax title to said lots and employed intervener, who is an attorney at law, to act as his attorney in the prosecution of this action under a written agreement that “Middlecoff will render the necessary legal services to determine the title to said lands, and in cases where Kelly is declared by judgment or by compromise to be the owner, then said Kelly shall have his money invested back, and the overplus of the land shall be divided equally between them.” The original owners of the land, three of the defendants, although regularly served with process, made no appearance in the action, and their default for failure to answer the complaint was duly entered. The Federal Construction Company, also made a defendant, ap

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peared in said action by answer and claimed a lien upon said lots. Upon the issues thus framed a trial was had and resulted in a judgment in favor of the Federal Construction Company and. against plaintiff. A new trial, however, was thereafter granted by the trial court and the case was set for trial the second time. In all these proceedings the intervener acted as plaintiff’s attorney. When the action came on for trial the second time the intervener appeared ready and willing to proceed with the trial as plaintiff’s attorney, but the plaintiff, without just cause, discharged the intervener and employed other counsel to conduct the litigation. Immediately thereafter and with consent of court the intervener filed a complaint in intervention in this action and claimed to be the owner of an undivided one-half of said lots. His complaint in intervention was subsequently dismissed, and immediately thereafter the plaintiff and defendant Federal Construction Company announced in open court that they had agreed upon a compromise of said action, and in pursuance thereof a compromise judgment was, on May 4, 1926, entered in favor of plaintiff, quieting his title to said lots, and that intervener take nothing by his complaint in intervention. Pursuant to said compromise agreement Kelly conveyed to the Federal Construction Company four of said lots. Thereafter, upon the motion of the intervener, a new trial was granted, and the case was again set for trial on September 22, 1926,, on which day intervener appeared and filed a supplemental complaint in intervention, setting up the compromise agreement between the plaintiff and defendant Federal Construction Company, in which supplemental complaint he asked to have it decreed that he was the owner of an undivided one-half of the three lots which, it is claimed by the intervener, plaintiff acquired in the compromise agreement with the defendant Federal Construction Company. The trial court denied the intervener any relief and rendered judgment against him for costs, on the ground that plaintiff’s title to said lots had not been quieted or his interest therein determined, either by judgment or compromise, at the time of the filing of intervener’s supplemental complaint in intervention.