Diepenbrock v. Auslen

WARNE, J., pro tem.* This is an appeal from an order denying a motion for a change of venue to the city and county of San Francisco, appellant’s residence, in an action praying for declaratory relief filed in Sacramento County.

The complaint alleges that the defendant, Harry Auslen, who was coadministrator of the estate of Harry Auslender, deceased, employed the law firm of Devlin, Diepenbrock & Wnlff, to act as attorneys for him in connection with problems confronting him in the estate of said deceased. It is alleged that said employment was set forth in a letter dated December 15, 1954, addressed to defendant, reading as follows:

“Concerning yonr employment of my firm in connection with the problems confronting you in the estate of Harry Auslender, Sacramento No. 36657, this will confirm our understanding of today that you are to pay us a minimum retainer [749]fee of $500.00. Should it be inadequate to cover reasonable compensation for our professional services, then you are to pay such additional sum as will close the gap.

“In transmitting your check, please indicate that the foregoing finds your approval.

Very truly yours,

A. I. Diepenbrock”

It is alleged that defendant acknowledged receipt of this letter by his letter dated December 17, 1954. The complaint then enumerates the services rendered in connection with the decedent’s estate, and also alleges the reasonable value of the services rendered.

It is further alleged that Devlin, Diepenbrock & Wulff assigned to A. I. Diepenbrock, the plaintiff, the firm’s claims against defendant for such of the professional services as were rendered to defendant as an individual. The assignment is alleged to have excepted those services rendered to the estate of the deceased. It is further alleged that an actual controversy exists between plaintiff’s assignor and defendant as to the reasonable value of said services and as to the responsibility therefor; that defendant asserts that all of said services were rendered for the account and benefit of the estate of said deceased and its administrators and that he is not personally liable for any part thereof; that defendant’s coadministrator asserts that a substantial portion of said services were for the personal account and benefit of the defendant; that plaintiff is unable to state to what extent said services are personal to defendant, and to what extent same are allocable to the estate of said deceased; that plaintiff’s assignor has filed a petition for attorneys’ fees in the estate of said deceased; that the petition was directed to defendant individually, and as well to the defendant and Morris Auslen as coadministrators; that defendant denied jurisdiction of the court and the court granted a motion for his dismissal subject to the condition that such dismissal was without prejudice to the prosecution of an independent action on the civil side of the court against defendant; that this action is the result; and that plaintiff desires a declaration of his rights. The prayer of the complaint asks that the court fix the reasonable value of the services rendered to plaintiff’s assignor and allocate to defendant and render judgment against him for such portion as is justly due from him as an individual.