Huskey v. Berini

NOURSE, P. J. Respondents have filed a motion to dismiss the appeal on the ground that the appellants (the law firm of Delany, Fishgold, Freitas & Rowe) are not parties to the action in which the appeal has been taken and, therefore, have no right of appeal.

On March 24, 1952, the law firm of Delany, Werchick, Fishgold & Minudri entered into a contract with Roy Huskey in which they agreed to represent him in a personal injury action in return for 40 per cent of any sums recovered by judgment or compromise. When the action was filed, the law firm of Delany, Fishgold & Minudri (which had succeeded the law firm of Delany, Werchick, Fishgold & Minudri) was named as attorneys of record. Mrs. Minudri then left the law firm of Delany, Fishgold & Minudri. After an agreement that Mrs. Minudri would prosecute the action and “retain” two-thirds of the fee, while her former law firm was “to receive” one-third, Mrs. Minudri and Manuel L. Furtado were associated as attorneys of record. She seeks [276]to hold this one-third as an offset against other claims against the partnership.

On March 10, 1954, judgment was entered in favor of the plaintiff, Boy Huskey, in the sum of $15,000. On June 11, 1954, because of an alleged disagreement between the plaintiff’s attorneys concerning the amount and the receipt of their fees, the defendants petitioned the superior court for an order to deposit in court the amount of the judgment plus costs and interest. The superior court made the order requested and ordered in addition that the defendants give notice of the order to Belany, Fishgold & Minudri and to Mrs. Minudri and Mr. Furtado; the required notice was given. On June 11, 1954, Mr. Fishgold filed an affidavit for an order for release of $6,708.83 to the law firm of Belany, Fishgold & Minudri. Mrs. Minudri filed an affidavit for an order releasing the $6,708.83 to her and releasing $8,976.29 to the plaintiff. On June 11, $8,976.29 was ordered released to Boy Huskey. On June 14, after a hearing, the court ordered the $6,708.83 to be awarded to Mrs. Minudri; it is from that order that appellants appealed. Bespondents then filed a motion to dismiss the appeal.

The motion to dismiss was argued orally but no satisfactory authorities were cited by either party. It has been our uniform practice, when the propriety of an appeal is doubtful, to deny the motion to dismiss and let the parties argue fully on the merits. This seems a proper case to follow that practice.