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McMANUS v. MONTGOMERY

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District Court of Appeal, Second District, Division 2, California.

McMANUS v. MONTGOMERY.†

Civ. 11611.

Decided: January 12, 1938

W. L. Baugh, Jr., Roy L. Herndon, and Meserve, Mumper, Hughes & Robertson, all of Los Angeles, for appellant. Irvin C. Louis, H. B. Pool, and Mildred Gilmore, all of Los Angeles, for respondent.

This is an appeal from a judgment awarding, to the plaintiff, attorneys' fees for services rendered by the plaintiff's assignors in a former separate maintenance action.

Plaintiff's assignors, hereinafter referred to as the attorneys, represented the defendant in said former action in which an order to show cause for the payment of attorneys' fees was obtained upon an affidavit of the defendant alleging her poverty and the necessity of an award for attorneys' fees against the husband in order to enable her to prepare and prosecute her action, and it appears as a part of the evidence in the instant case that at the trial of that proceeding the wife was interrogated concerning her arrangements with her attorneys and testified as follows:

“By Mr. Butcher: Mrs. Montgomery, have you made any agreement with your counsel in effect that you would pay them for their services out of any property that might be assigned to you in this case by the Court? A. No.

“Q. Have you made any agreement with them in regard to counsel fees? A. No.

“Q. Have you obligated yourself to them in any manner, form or in any way, to pay them any attorneys' fees? A. No. That was never discussed at all.”

No attempt was made by anyone to challenge or impeach her testimony in this respect at the trial of the separate maintenance action. In that action the trial judge awarded $250 at one time and $400 at another, but before the payment of the latter sum and before the findings of fact and conclusions of law were settled or signed, the attorneys were substituted out of the case and had no further opportunity to perform services for the defendant therein. The trial court found that the defendant and the attorneys had entered into an oral agreement under which the attorneys promised and agreed to render such legal services as were necessary to commence and prosecute the action and that an agreement was implied by law to pay the reasonable value for said services together with necessary moneys expended by said attorneys for and on account of travel, which were incurred in the maintenance of said action, and awarded judgment in the sum of $2,185.28.

It is the contention of the defendant that under the circumstances the plaintiff is estopped to claim the existence of any contract, express or implied, between the attorneys and the client, and she relies almost entirely upon certain language used in the case of Theisen v. Keough, 115 Cal.App. 353, 1 P.2d 1015. The contention of the defendant is untenable. Our reasons are fully stated in the case of Neblett v. Getty, Cal.App., 66 P.2d 473, which case was very similar as to the facts of the instant case. The testimony of the defendant upon which she relies as above set forth is only a part of the evidence in the trial of the instant action. The defendant did not pay to the attorneys the $400 which was awarded to her by the court and it was made clearly to appear that when she so testified she had no reference to the contract which is implied by law under the facts as above related. The issue of estoppel was not raised in the pleadings by the defendant. Upon this appeal the question for this court to determine is whether there is any substantial evidence to sustain the findings of the trial court, and in our view there is such evidence.

Judgment affirmed.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, J.

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