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MCGOWAN v. PARISH

decided: April 14, 1913.

MCGOWAN, EXECUTRIX OF MCGOWAN
v.
PARISH, EXECUTRIX OF PARISH.



IN THE MATTER OF THE APPLICATION FOR ALLOWANCE OF AN APPEAL FROM A DECREE OF THE COURT OF APPEALS OF THE DISTRICT OF COLUMBIA.

Author: White

[ 228 U.S. Page 313]

 MR. CHIEF JUSTICE WHITE delivered the opinion of the court.

In a controversy with the United States, the executrix of Joseph W. Parish ultimately recovered a judgment for a large sum of money. Parish v. MacVeagh, 214 U.S. 124. Claiming to be entitled to a lien or liens upon the proceeds of the claim and to be the equitable owners of one-tenth of the amount awarded, because of services rendered as attorneys at law, under express contracts made with Joseph W. Parish, a suit in equity was commenced in the Supreme Court of the District of Columbia, by Jonas H. McGowan and Elijah V. Brookshire, against the executrix of Parish and the then Secretary of the Treasury and the Treasurer of the United States to enforce said alleged lien or liens. A restraining order issued, but before answer an interlocutory decree was entered by consent of the defendant executrix, by which the restraining order was dissolved and $41,000 of the sum owing by the United States to the Parish estate was collected and deposited with a trustee "to the credit of this cause and subject to the further order of this court herein, and subject to the determination by this court in this cause whether any amount, and if so what amount, is justly due the complainants, or either of them, for professional services rendered by them, or either of them, for or in respect of the matters described in the bill of complaint."

[ 228 U.S. Page 314]

     The case thereafter proceeded solely against the executrix of Parish.Soon afterwards McGowan died and his executrix was substituted. The defendant executrix answered, and the objections therein raised to the case made by the plaintiff were thus summarized by the judge before whom the case was ultimately heard:

"(1) That the plaintiffs' claims, if any, are barred by their failure to have the same passed and approved by the probate court within the time limited by the statute.

"(2) That the lien asserted by the plaintiffs is in violation of the Revised Statutes, section 3477.

"(3) That even taking the contract of McGowan as it read, he had not fulfilled its condition and is therefore entitled to nothing.

"(4) That the plaintiffs totally abandoned the prosecution of the claim and voluntarily relinquished all rights they may have had under their contracts.

"(5) That in any view of the case the plaintiffs are entitled to nothing more than the reasonable value of their services."

The section of the Revised Statutes referred to is in the margin.*fn1

[ 228 U.S. Page 315]

     The trial judge disposed of the case in an elaborate opinion. Considering whether the lien asserted by the plaintiff was in conflict with Rev. Stat., § 3477, it was held that all question on that subject had been waived by the consent to the interlocutory decree, which reserved only the question of indebtedness and the amount thereof. The case was deemed to be analogous to that presented in Price v. Forrest, 173 U.S. 410, 423, 424, where the scope and effect of Rev. Stat., § 3477, was considered; and it was in effect decided that the statute would not be contravened by adjudicating upon the alleged contract rights of the parties in respect to the fund on deposit. On appeal the Court of Appeals reversed the decree of the Supreme Court, and among other things explicitly decided that the contracts relied upon were repugnant to § 3477 and were absolutely void. It was, however, also held that, putting aside the question of contract lien and assuming that there was an agreement to pay a contingent fee, no lien operative upon the fund existed for such fee because the judgment for the claim against the United States had been recovered by other attorneys acting independently of the complainants. Thus reaching the conclusion that as the result of the provisions of the statute there could be no lien, and there was, moreover, none, viewing the case independently of the statute, and hence, no valid ground of equity jurisdiction, it was substantially decided that from the point of view of the alleged contract and the right to the fund asserted to arise from it the court was without power to interfere. Considering the interlocutory ...


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