J. Andrew Guttery, for Petitioner.
H. K. Pilkington, for Respondent.
By the Court, Talbot, C. J.:
Petitioner applies for a writ of certiorari to review the action of the district court, which he claims was without jurisdiction to try and to render judgment against him under the following conditions:
On the 16th day of February, 1909, petitioner, as an attorney at law, brought an action in the district court of Douglas County for one Harry Simpson, plaintiff, against the Buckskin Gold Nugget Mining Company, a corporation, defendant, to foreclose a mechanic's lien amounting to $374 for wages on mining claims situated in Douglas County. Pending this action, Simpson became afflicted with a fatal illness, and, being apprehensive of death, had the bills against him presented, including bills mentioned in the petition, and one for $150 owing petitioner for legal services, and signed an endorsement acknowledging that he owed them, and requesting that they be paid out of any property which he possessed, which endorsement was witnessed by Theodore H. Trankle. Simpson authorized the petitioner to retain the $150 out
of any moneys that he might recover in the suit pending against the Buckskin Gold Nugget Mining Company.
While the action was pending, and on the 17th day of June, 1910, before judgment was obtained, Simpson made an assignment of his claim and lien for the wages hereinbefore mentioned to Trankle, who filed this assignment for record with the county recorder at Genoa on June 9, 1910, but did not otherwise notify the company that he was the assignee of the claim and lien. Trankle was not substituted and did not request to be substituted in the action.
Simpson died on July 6, 1910, and on the 14th of that month, after publication of notice to lien claimants, petitioner, purporting to act as attorney for Simpson, obtained a decree of the district court in the name of Harry Simpson against the Buckskin Gold Nugget Mining Company for the sum of $350 and costs. Trankle did not appear in court, or under his assignment or otherwise except to these proceedings.
After publication of notice of sale, and on the 29th day of July, 1910, the sheriff on the advice of petitioner, purporting to act for Simpson, accepted from J. A. Knox $425 for release and satisfaction of the judgment of decree for foreclosing the lien against the Buckskin Gold Nugget Mining Company. On August 5 following, a purported satisfaction and discharge of the lien and judgment was entered. From the amount so collected, and after making deductions for fees of the sheriff and clerk and for publication of notice, the sheriff sent the petitioner $357.05. After deducting costs, including fee of $150 for the petitioner, he sent to the clerk, with direction to credit to Harry Simpson, deceased, subject to the order of the district court of Douglas County, the balance of $154.55, which was deposited with the clerk on the 26th day of August, 1910, and has since remained with him, and which has been the bone of contention.
It is alleged that Trankle did not make known to petitioner the assignment of Simpson's claim or lien until after the judgment and decree had been obtained, and that, before bringing suit against petitioner, Trankle
knew that the $154.55 had been so deposited with the clerk, subject to the order of the district court of Douglas County, on the 26th day of August. On December 1, 1910, Trankle commenced an action in the justice's court in Mason Valley township, Lyon County, against petitioner to recover that sum, and in the complaint alleged that petitioner: Undertook the collection on behalf of one certain Harry Simpson of a mining lien against the Buckskin Gold Nugget Mining Company for $408, and on or about the 12th day of July, 1910, defendant as attorney for said lien received into his hands the sum of $357.05, and, after deducting from said amount all his claims for fees and expenses, he was accountable to the owner thereof for $154.55. That on or about the 7th day of June, 1910, plaintiff for a good and valuable consideration purchased of Harry Simpson the said lien of $408 against the Buckskin Gold Nugget Mining Company, and ever since the said 7th day of June, 1910, plaintiff has been the owner of said lien and entitled to an accounting from said defendant of the amount realized, * * * and defendant, though often importuned, refuses and fails to pay said amount, and defendant owes $154.55 at this day to plaintiff.
After trial, and on December 22, 1910, judgment was rendered in the justice's court in favor of Trankle and against the petitioner for $154.55 and attorney's fees and costs, and after appeal and trial in the district court this judgment of the justice's court was affirmed on the 18th day of November, 1912.
Petitioner contends that in entering judgment against him the justice's court and the district court on appeal had no jurisdiction over the money and property of a deceased person, in that the matters stated in such complaint are not such allegations as to establish a contract between the said plaintiff, Theodore H. Trankle, and the defendant, J. Andrew Guttery, for the payment of money, in that said complaint contains no allegation establishing any contract between the said plaintiff ...