
    Hyers et al. v. Western & Southern Life Ins. Co. et al.
    (Decided July 18, 1929.)
    
      
      Mr. Wm. 8. Rhotehamel and Mr. Wm. F. Hyers, for plaintiffs in error.
    
      Messrs. James <& Coolidge, for defendant in error Western & Southern Life Insurance Company.
    
      Messrs. Brumbaugh <B Mattern, for defendant in error McKeehan.
   Hornbeck, J.

The parties will be referred to hereinafter as they appeared in the common pleas court.

Plaintiffs, William F. Hyers and W. S. Rhotehamel, allege for their cause of action against the defendants that they represented defendant Mina C. McKeehan, who was the sole beneficiary under an accident policy carried with defendant life insurance company insuring George Washington Spahr against death by accidental means; that the insured having died, under their contract of employment with defendant McKeehan they negotiated and brought about a settlement with defendant insurance company, whereby it agreed to pay to defendant McKeehan the sum of $2,000; that the defendant McKeehan is attempting to procure the payment of said funds to her direct, thereby defeating the plaintiffs in their claim for attorney’s fees. They seek to have the court fix and determine the amount due them under their agreement with defendant Mc-Keehan, and that such sum so found be decreed to be, and operate as, a lien upon the fund and proceeds of the insurance policy, and that the defendant, the insurance company, be ordered to pay said fund to the clerk of the court of common pleas, and for such other and further relief as the plaintiffs are entitled to in the premises.

To the petition defendant McKeehan filed a general demurrer, which the court sustained, and plaintiffs not desiring to plead further, the court rendered judgment against them for their costs. To this judgment, error is prosecuted.

A brief discussion of the legal questions involved will give consideration to all of the specific grounds set forth in the petition in error.

There are two basic propositions upon which the petition must be tested:

(1) Is the action equitable in character, or is it a simple action at law in quantum meruit?
(2) Are the proceeds now held by the insurance company, or so much of them as may be decreed by the court to be due plaintiffs, subject to a lien of plaintiffs ?

In our judgment, both questions are answered in decided cases which this court is bound to accept as controlling. These decisions are Walcutt v. Huling, 5 Ohio App., 326, decided by this (Franklin county) Court of Appeals, March 24, 1913, and Roberts et al., Partners, v. Montgomery, decided by the Supreme Court of Ohio in December, 1926, found in 115 Ohio St., 502, 154 N. E., 740.

The Walcutt case was a suit brought in equity to require the court to fix and determine the value of legal services performed under contract by Huling for Walcutt, through which services a judgment had been rendered, and for a decree awarding a lien to Huling on the fund represented by said judgment. The common pleas court, over the objection of counsel for Walcutt, held that this was a suit in equity, and determined the amount due Huling, which had not been definitely ficced in the contract of employment, and decreed the amount of the judgment for Huling to be a lien on the judgment fund. This action of the trial court was affirmed in the Court of Appeals in the case of Walcutt v. Huling, supra. This case, then, as stated in the second proposition of the syllabus, 13 N. P. (N. S.), 409, is decisive to the effect that: “An action to determine the amount due to an attorney on account of services in procuring a judgment in process of settlement is an equitable proceeding, * * * and does not fall under Section 11379, which merely preserves the common law right of trial by jury, and does not extend to cases peculiar to a court of equity. ’ ’

We are unable to make any distinction between the character of an action to determine the amount due for attorney’s fees on an account in procuring a judgment and an action to determine the amount due in securing a fund which has been set apart, and is available to be paid upon the order of the court, and can note no change in the equitable character of the proceeding because the amount which may be due plaintiffs is not fixed, but subject to determination by the court.

Coming to the second proposition, were it not for the Roberts case in 115 Ohio State, we would clearly be of the opinion that the instant case could not in any aspect come within the classification authorizing a court of equity to decree a lien on the fund under consideration, inasmuch as the plaintiffs’ claim had not been reduced to judgment and the fund was not in possession of the plaintiffs. But in our judgment the Supreme Court, in deciding the Roberts case, went a step further than in any former decision on like subject-matter in Ohio, and the facts in that case so nearly parallel those in this case that the law therein enunciated seems to be controlling. We have carefully examined the Roberts ease, not only in so far as it appears in the reported opinion of the Supreme Court, but from the original pleadings and decrees in the common pleas court of Cuyahoga county. The facts in the Roberts case were that the firm of Howell, Roberts & Duncan had entered into a written contract with Montgomery, whereby the firm was to render legal services for Montgomery in negotiating settlement, prosecuting in court, and doing all other things necessary in his behalf in his claim for damages for personal injuries against the Industrial Fibre Corporation. The firm, after preliminary negotiations with the fibre company, determined to institute suit, prepared a petition, and sent it to Montgomery to be sworn to and returned. Montgomery, after receiving the petition, employed an attorney by the name of Tim Long, and Long filed the petition which Howell, Roberts & Duncan had prepared. Montgomery notified the firm of Howell, Roberts & Duncan that it was discharged from further services in the case. During the progress of the trial a settlement was brought about between Montgomery and the Industrial Fibre Corporation, and no judgment was entered on behalf of Montgomery.

Suit was brought by Howell, Roberts & Duncan, in which the foregoing facts were pleaded, together with an allegation that the firm had performed certain services for the defendant Montgomery, and were at all times ready, willing, and able to completely fulfill its part of the contract, and asked the court to fix the value of its services at $5,500, the amount due on the percentage basis fixed in the contract ; that the fund in such amount, which was then held by W. L. David, be declared to be held in trust for plaintiff, and that it be decreed to be the owner of and entitled to that amount. This was instituted as an equitable proceeding, and was so considered and acted upon by all the courts before which it was presented.

It will be noted that there is marked similarity in the Roberts case and the instant case. Here there is a fund which is being held subject to the order of the court, inasmuch as the insurance company is a party defendant. There, a fund was held by W. L. David. There, the defendant Montgomery denied any liability to Howell, Roberts & Duncan, and denied any right of the court to decree ownership of all, or any part, of the fund to the firm. Here, defendant McKeehan denies any liability to the plaintiffs and denies the right of the court to decree them to be the owners of any part of the fund. In the Roberts case all three courts held that the fund in the hands of David was held in trust for Roberts, although they differed as to the amount due Roberts, and held that the firm was the owner of and entitled to the fund.

But there is one vital distinction between the facts in the Roberts case and the allegations of the petition in this case. In the Roberts case the contract was conceded, and by its terms Roberts was to have one-third of the money, or specific fund, which was recovered by the settlement with the fibre company.

In the instant case, the claim is not asserted either by express or implied contract that payment was to be made to plaintiffs out of the proceeds or specific fund secured to the defendant McKeebfan from the defendant insurance company. The petition is silent on this material matter.

The averments of the petition go no further than to establish the relation of debtor and creditor.

A lien such as is sought in the instant case amounts to a preference, and, before it can be held to attach it must be alleged, either directly or by necessary inference, that plaintiffs’ payment for services was to be secured by or attached to the fund against which the lien is asserted.

We have been unable, after careful consideration, and with an appreciation that the equities in this case are with the plaintiffs, to find this necessary allegation. If it were made, we would hold that the Roberts case would require the overruling of the demurrer.

We do not deem it necessary to discuss the many other cases cited by counsel for both parties inasmuch as the two cases commented upon in this opinion are most favorable to plaintiffs, and controlling upon us in our decision.

The petition is faulty in the particular which we have indicated, and therefore the demurrer was properly sustained, and the judgment thereon will be affirmed.

Judgment affirmed.

Kunkle and Allread, JJ., concur.  