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Mason Et Al. v. Papadopulos Et Al.

NOVEMBER 27, 1956.




Appeal from the Circuit Court of Cook county; the Hon. THOMAS J. COURTNEY, Judge, presiding. Affirmed in part; reversed in part and remanded.


The Circuit Court of Cook County on March 29, 1955 after a hearing entered an order dismissing two intervening petitions to enforce attorneys' liens, which also asked for judgment for attorneys' fees against the respondent Henry Nierman. From this order Charles and Cartman, petitioners, bring this appeal.

In the first petition it was alleged that on December 12, 1950 Sallie Perry, mother of Luedna Simon, deceased, had retained petitioners as her attorneys to represent her in a certain claim as administratrix of the estate of, and as one of the heirs and beneficiaries of, the said Luedna Simon against Henry Nierman, one of the defendants and the respondent in the case before us. Under the contract set up in the petition Perry employed the petitioners as her attorneys and agreed to pay them 50% of any sum which she might recover on a trial and 33 1/3% in case of a settlement. It was alleged that notice of the lien was served on the respondent; that subsequently one Mary Mason as administratrix of certain estates, including that of Luedna Simon, through another attorney, instituted suit; that a settlement was effected therein in the amount of $2,000 and the petitioners are entitled to recover from the respondent the sum of $1,000, for which sum they pray judgment.

The second petition sets up that Mary Mason had retained the petitioners as her attorneys in a claim for personal injuries suffered by her and to represent her as administratrix of the estates of her husband and five children, in which she was the sole beneficiary. The alleged contract with Mason had the same provisions as the contract with Perry as set out in the first petition. Petitioners alleged that notice of the lien had been served and that Mason subsequently, individually and as administratrix, commenced a suit against the respondent, which was settled for the sum of $9,000. Petitioners allege that they are entitled to the sum of $4,500 and pray judgment against the respondent.

A motion to strike the first petition and an answer to the second petition were filed by the respondent, and petitioners filed a reply.

The instant suit (in which the intervening petitions were filed) was brought through one Anderson, an attorney, by Mary Mason, who was appointed administratrix of the estates of her husband and five children and of Luedna Simon. Petitions seeking authorization to settle the suit were also filed by her through her attorney in the Probate Court, and it was stipulated that a settlement of $9,000 for the seven death claims and for the individual injuries of Mason was approved.

The answer to the intervening petitions and the reply thereto raised the issue that the contracts between the petitioners and Mason and Perry were obtained by solicitation and were therefore void.

The petitioners contend that the contracts which had been entered into by them with Sallie Perry and Mary Mason, by which Mason and Perry agreed to retain the petitioners as their attorneys on a contingent basis in all matters concerning claims against the respondent Henry Nierman which arose out of the personal injuries suffered by Mary Mason, the death of her husband and five children, and the claim which Sallie Perry had with reference to the death of her daughter, were valid and binding contracts; that proper notice had been served on the respondent in accordance with the Illinois statute; that the petitioners were discharged without good cause by Mason and Perry, and that when the respondent settled the claim she became liable to the petitioners under the contracts.

The respondent's theory is that the petitioners did not sustain the issues raised by the answer and the reply thereto that the contracts were fairly and properly made; that the contract with Sallie Perry should not have been recognized since Sallie Perry was not a party to the action for the alleged wrongful death of her daughter Luedna Simon, nor was she the administratrix of the estate of Luedna Simon, nor the sole beneficiary thereof, and that the petitioners could not assert a lien based on such contract against the defendant in the Circuit Court.

From the pleadings it appears that an answer was filed to the intervening petition with reference to the claim under the contract with Mary Mason and a motion to strike was filed with reference to the claim of the petitioners under the contract with Sallie Perry. On the hearing it was apparently tacitly agreed by the parties in court that the claim of Sallie Perry would be treated with the motion to strike standing as an answer. With reference to the claim made under the contract signed by Mary Mason, the respondent urges that the contract could not be binding upon Mary Mason in her capacity as administratrix because it was entered into before her appointment and no order of court was subsequently entered approving the contract. That question has been definitely and decisively settled by the decisions of this court where the party entering into the contract is the sole beneficiary. It has been held that while the Attorney's Lien Act may not give an attorney a lien on the funds held by an administrator, since the administrator has no authority to charge such funds with the payment of attorney's fees, nevertheless there is a lien which is sufficient to compel the defendant from whom the fund is recovered to account to the attorney if his rights are ignored after notice thereof. Abrams v. Berg's Market and Liquor Store, 317 Ill. App. 380; Bennett v. Chicago & E.I.R. Co., 327 Ill. App. 76; Ryan v. Chicago, M. St. P. & P.R. Co., 259 Ill. App. 472. It is not necessary for an administrator to secure the approval of the Probate Court of such a contract for legal services. Bennett v. Chicago & E.I.R. Co., supra, p. 81.

The case of Abrams v. Berg's Market and Liquor Store, supra, was a suit brought for attorney's fees under the attorney's lien statute. In that case the allegations in the pleadings were that the plaintiff had entered into a contract with one Evelyn Smith, the mother of a deceased minor, to employ plaintiff as attorney to recover damages for the wrongful death of the said minor, and that subsequently an administrator of the estate of the deceased minor had, without the knowledge or consent of the plaintiff, made a settlement. The trial court dismissed the statement of claim on the motion of the defendant. The Appellate Court reversed the trial court, holding that Evelyn Smith as sole beneficiary had the right to settle the claim against the defendant and since such settlement, if made, would have been a bar to any suit brought by the administrator of the estate, she also had the right to hire an attorney to represent her in the matter of her claim against the defendant; and the fact that Evelyn Smith had not been appointed administrator, but that a trust company had been, is immaterial. The court cites Mattoon Gas Light & Coke Co. v. Dolan, 105 Ill. App. 1, 4; Voorhees v. Chicago & Alton R. Co., 208 Ill. App. 86, 93; Ryan v. Chicago, M. St. P. & P.R. Co., 259 Ill. App. 472; Washington v. Louisville & N. Ry. Co., 136 Ill. 49, 56; Henchey v. City of Chicago, 41 Ill. 136. The instant contract was a valid and enforceable contract with Mary Mason, both in her capacity as administratrix and as an individual and would support an action under the Attorney's Lien Act.

Sallie Perry was the mother of Luedna Simon and Mary Mason. The statute of distribution (par. 162, ch. 3, Ill. Rev. Stat.) pertaining to the administration of estates provides that where the deceased leaves no surviving spouse or descendant but has surviving parents, brothers and sisters etc., the entire estate shall descend to the parents, brothers and sisters of the decedent in equal parts, allowing to the surviving parent, if one is dead, a double portion. Sallie Perry was not the sole beneficiary of Luedna Simon since Mary Mason was a surviving sister of Luedna Simon. Sallie Perry was not appointed administratrix of the estate. Under the law as set forth in the preceding cases she could only make a contract with the petitioners which would bind her individually with reference to her claim as one of the beneficiaries of the estate of Luedna Simon, and such contract would not bind an administratrix subsequently appointed in the estate. The petition with reference to the claim based on the contract with Sallie Perry was properly dismissed.

The only question then left before us to determine is whether or not the respondent has sustained the burden of proving that the contract with Mason was void because it was obtained through the unlawful and unethical solicitation of the petitioners.

It is the rule that where the question of solicitation is raised in order to defeat an attorney's lien, the burden of proof rests upon the party attempting to show that the lien is void by reason of solicitation. Ryan v. Pennsylvania R. Co., 268 Ill. App. 364, 379. The uncontradicted testimony in the record is that on the morning of the fire in which the decedents were killed, Cartman, who had been admitted to the bar in 1950, was approached by one Curry, a man whom he had known for some months and whom he believed to be the husband of Luedna Simon, daughter of Sallie Perry and sister of Mary Mason. At Curry's request Cartman went to the police station to discuss with Mrs. Mason his employment as her attorney to protect her interests. He was introduced to her by either Douglas, the undertaker, or Curry. She told him that she did not want to talk about the matter then, and he told her that if she wanted to see him to have Douglas or Curry get in touch with him. Cartman's uncontradicted testimony was that Douglas later asked him to see Mrs. Mason and that he did see her that evening at about 5:30 or 6:00. He asked her to sign a contract engaging him as attorney. A minister who was there told Cartman not to bother her because she was in no condition to sign papers and told Mrs. Mason that he would check on Cartman and if he found Cartman was alright he would let her know. She did not remember if the minister subsequently contacted her. Again on the same evening, when called by Douglas, Cartman with Charles, the other petitioner, again went to the house where Mrs. Mason was, and at that time at about 7:30 or 8:00 in the evening they discussed the matter at length, and she signed an agreement appointing Cartman as her agent and attorney to act for her. Subsequently on December 11th she signed the contract on which the second petition was based. On December 12th Sallie Perry affixed her mark to the contract upon which the first petition was based. Subsequently an attorney Anderson was brought into the case by a certain Brown who, according to the testimony of Mrs. Mason in the hearing in the trial court, solicited her to employ Anderson as her lawyer. At the instigation of Anderson she signed an affidavit at the hearing before the Chicago Bar Association on the complaint made by the petitioners against ...

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