Horton v. Champlin

Dureee, C. J. This action is debt on a judgment for costs recovered by tbe plaintiff in an action in which the *551 parties were reversed. 1 The present action was brought in a justice court, appealed to the Court of Common Pleas, and comes here by bill of exceptions. One of the exceptions is for the refusal of tbe court below to dismiss tbe action on motion of tbe defendant, because it was brought and is prosecuted without authority. The attorney who prosecutes the action admits that he was not expressly authorized to bring it, but justifies himself on the ground that he was attorney for the present plaintiff in the action in which the judgment in suit was recovered, and has a lien on the judgment for fees and costs, and he claims, that by reason of this and of his former employment, he was and is entitled to institute and prosecute the action. Is his claim valid ? We think not. The authority of an attorney retained to prosecute or defend an action, extends only to the recovery of final judgment and to its enforcement by execution or other subsidiary proceedings. He cannot institute a new action to revive or enforce the judgment without a new warrant or authority from his client. Kellogg v. Gilbert, 10 Johns. Rep. 220; Walradt v. Maynard, 3 Barb. S. C. 484; Lust v. Hastings, 1 Hill, N. Y. 658; Macbeath v. Cooke, 1 Moore & Payne, 513; 4 Bing. 578; Richardson v. Talbott, 2 Bibb, 382 ; Hinkley v. St. Anthony Falls Co. 9 Minn. 55 ; Egan v. Rooney, 38 How. Pr. 121 ; Day v. Welles, 31 Conn. 344. The attorney, in support of his right to sue the judgment by virtue of his lien, cites Woods v. Berry, 4 Gray, 357 ; Strattons. Hussey, 62 Me. 283 ; Currier v. Boston & Maine R. R. 37 N. H. 223 ; Marshall v. Meech, 51 N. Y. 140. The first two cases, those from Massachusetts and Maine, hold that the attorney has the right to sue the judgment, by virtue of his lien for fees and disbursements, which in those States is given by statute, no lien at common law having ever been recognized. The cases are therefore not very strong authority for a State where no such statute exists. The other two cases emphatically assert the lien, but do not expressly decide that it authorizes the attorney to sue the judgment. The New York case, however, does hold that the attorney is to the amount of his lien to be deemed an equitable *552 assignee of the judgment, which is perhaps equivalent to holding that he has a right to sue it. But in our opinion it is going too far to hold that the attorney has the same control of the judgment as if it were assigned to him, for if he had, his client could not settle with the adverse party, and it has been repeatedly decided that he can settle with him, unless they collude to cheat the attorney. Gra ves v. Eades, 5 Taunt. 429; also 1 Marsh. C. P. 113; Marr v. Smith, 4 B. & A. 466; Welsh v. Hole, 1 Doug. 238 ; Pender v. Morris, 3 Cai. Rep. 165. And even when the parties collude, the remedy is not in the hands of the attorney ; but the judgment being released and the sheriff notified not to proceed, the sheriff will be liable as a trespasser if he does proceed, though he proceeds under the order of the attorney for the costs. Barker v. St. Quintin, 12 M. & W. 441. The proper course for the attorney in such a case is to ask the intervention of the court. Ibid.; also Rooney v. Second Avenue R. R. Co. 18 N. Y. 368. The origin and extent of the lien at common law is obscure. Baron Parke said, in Barker v. St. Quintin, supra, “ the lien which an attorney is said to have on a judgment, which is, perhaps, an incorrect expression, is merely a claim to the equitable interference of the court to have the judgment held as a security for the debt.” This view of the lien was approved in Hough v. Edwards, 1 H. & N. 171, Baron Martin adding, by way of further explication, that “ the right of the attorney is merely this, .... that if he gets the fruits of the judgment into his hands, the court will not deprive him of them until his costs are paid.” Accordingly, in Hough v. Edwards, the court held that an attachment of the judgment was paramount to the lien. In our opinion, the two remarks of Baron Parke and Baron Martin, together, pretty exactly define the lien. Primarily, without doubt, the lien originates in the control which the attorney has by his retainer over the judgment, and the processes for its enforcement. This enables him to collect the judgment, and reimburse himself out of the proceeds. It gives him no right, however, to exceed the authority conferred by his retainer. But inasmuch as the attorney has the right, or at least is induced, to rely on his retainer to secure him in this way for his fees and disbursements, he thereby acquires a sort of equity, to the extent *553 of bis fees and disbursements, to control the judgment and its incidental processes, against his client and the adverse party colluding with his client, which the court will, in the exercise of a reasonable discretion, protect and enforce. And on the same ground, the court will, when it can, protect the attorney in matters of equitable set-off. We think this is the full scope of the lien, if lien it can be called. It does not authorize the attorney to sue the judgment, without the consent or direction of the client. See Jordan v. Hunt, 3 Dowl. P. C. 666 ; Francis v. Webb, 7 C. B. 731 ; Jones v. Bonner, 2 Exch. Rep. 229 ; Clark v. Smith, 6 M. & G. 1051. The attorney contends that the judgment, being in favor of his client, as defendant, only for his costs, belongs absolutely to the attorney. If this be so, the right of the attorney to sue the judgment can hardly be questioned. We are not prepared to say that it is not so in some States by statute. We do not find any statute which convinces us that it is so in this State, and, primá facie, the judgment belongs to the party in whose favor it is rendered. In The People v. Hardenbergh, 8 Johns. Rep. 209, it was decided that a settlement of the costs by the defendant in a suit, in whose favor they are awarded, with the plaintiff is valid, if made without notice from the defendant’s attorney of any claim or lien, and without any collusion to deprive the attorney of his costs. This decision is inconsistent with the idea of absolute ownership by the attorney. See also Quested v. Callis, 10 M. & W. 19. We have no doubt that attorneys are accustomed to treat the costs as their perquisites, and the custom is not wholly without warrant, inasmuch as the costs do more specifically represent their disbursements and services than the debt or damages. But, so far as we know, the custom has never been held to authorize the attorney to sue the judgment for his own benefit, or to do more than enforce it by the usual processes, and, having collected it, pocket the costs without accounting for them to his client. The judgment, if sued, would be liable to statutory set-off; and thus the attorney, if allowed to sue.it without the consent of the client, might involve him in an unwished-for controversy, with the possible result of a judgment against him instead of one in his favor. Nicoll v. Nicoll, 16 Wend. 441; Brooks v. Hanford 15 Ab. Pr. 342 ; Benjamin v. Benjamin, 17 Conn. 110. *554 Our conclusion is, that the attorney instituted and is prosecuting the action without authority, and that it must therefore be dismissed; for though the court will presume that an attorney who brings an action has authority to bring it, until the contrary appears, yet it will not knowingly permit him to abuse his privilege ; but, when the contrary appears, will for its own protection as well as for tbe protection of the parties, order the action dismissed. Frye v. County of Calhoun, 14 Ill. 132; Crichfield v. Porter, 3 Ohio, 518; Campbell v. Bristol, 19 Wend. 101; Dobbins v. Dupree, 39 Ga. 394. Of course, however, we cannot enter any judgment against the plaintiff for costs; for the dismissal is ordered on the ground that the plaintiff is not legally in court. Footnotes [1] Champlin v. Horton, ante, p. 123.