
    No. 239
    RAY v. KACHENMEISTER
    Ohio Court of Appeals, Lucas County
    No. 1275.
    Jan. 25, 1923
    ATTORENY AND CLIENT — (1) Contingent fees —(2) Reviver of action; judgment — (1) Dismissal without prejudices.
    Attorneys — A. F. Hanson and E. H. Ray, for plaintiff; Doyle & Lewis and R. Newbegin, for defendant.
   KINKADE, J.:

Epitomized Opinion

The plaintiff, a lawyer, brought action against his client for attorney fees for having prosecuted a claim for personal injuries against a railroad. The lawyer claimed that he had an agreement with his client to receive for his services 50% of whatever amount should be collected. After a settlement was made, the client failed to pay the plaintiff. Later an amended petition was filed making the railroad company a party defendant. Finally a second amended petition was filed in which the death of the client was -suggested and in which it was also claimed that the settlement was a transaction in the nature of a conspiracy between the client and railroad, intending to defeat a recovery of attorney fees. It also set upan agreement whereby the railroad promised the client to pay the plaintiff’s fee. A motion was made to dismiss for the reason that the plaintiff had not revived the action in the name of the personal representative of the deceased client. As the motion was sustained, plaintiff appealed. The railroad immediately raised the question of the appeal-ability of the case, claiming that it was an action at law. The Supreme Court held-:

1. As the second amended petition set up a contract for the benefit of a third person, the cause of action stated therein, was an action at law and was not appealable.

2. As the position of the) railroad would not be benefited by a reviver, it was nto necessary for the plaintiff to revive the action in the name of the personal representative.

3. A judgment of dismissal without prejudice is a final order from which error can be prosecuted to another court.  