Cooly v. Patterson

The opinion of the Court was drawn by Walton, J. The principal question presented for determination in this case is, whether a settlement by the parties, after a certificate from the law court, making a final disposition of the cause, had been received by the clerk in vacation, in the county-where the suit was pending, and pending an appeal from the decision of the clerk in relation to the taxation of costs, defeated the attorney’s lien upon the judgment, so that he cannot maintain an action thereon for his fees and disbursements. We think not. It is true, that an attorney’s lien does not attach till final judgment; but we think such a certificate is the final judgment of the Court. It ends the controversy, and determines with certainty which is the prevailing party. Time must be had to adjust the bill of costs before an execution can issue, but this is a delay incident to all judgments. Such a delay does not change or postpone the date of the judgment. When such a certificate is received in vacation, the judgment is to be recorded as of the preceding term ; but, for all practical purposes, we think the true date of the judgment is the time when such certificate is received by the clerk of the county where the action is pending. In substance and in fact such certificate is the final judgment of the Court in relation to that suit. In Young v. Dearborn, 7 Foster, (N. H.,) 324, the Court held that an order of the Superior Court, after verdict, that judgment be rendered on the verdict, would be deemed the judgment so far as to give the attorney a lien for his fees and disbursements. In that case the Court say that such an order is a final determination of the case, the end of all liti [475] gation and controversy as to the merits of the case; that the time when the judgment is entered up in form is immaterial ; that time must ordinarily' elapse between the making of such orders and the actual entry of judgment; but that the delay ought not to affect the rights of the parties or their attorneys; that, for the purpose of ascertaining their rights in this respect, the order of the Court for judgment should be deemed the judgment itself. The certificate of the law court, in the original suit between these parties, was received July 19, 1862. The plaintiff was the prevailing party. The cost was taxed by his attorney, allowed by the clerk, and an appeal taken by the defendant. Pending this appeal, namely, Sept. 30, 1862, without the knowledge or consent of his attorney, the plaintiff settled with the defendant, and gave him a receipt in full for' debt and cost. This suit is brought by the plaintiff’s attorney, upon the judgment rendered for the plaintiff in that suit, to enforce his lien for his fees and disbursements. It has been settled, by a series of decisions in this State, that an attorney has such a lien. It extends, however, only to the bill of costs, as taxed and allowed, and included in -the judgment; and will include only so much of that as is justly due to the attorney. The whole bill of costs included in the original judgment between these parties, was $119,80. The plaintiff’s attorney claims judgment in this suit for $49,08. • This latter sum includes the travel and attendance of the party, amounting to $38,99 ; and, it is contended in defence that the fees accruing for these items belong to the party and not to the attorney, and that the latter cannot rightfully claim a lien upon the judgment to secure them. In strictness all the items included in the bill of cost belong to the party; but when the party employs an attorney to attend to the case for him, and the attorney does attend to it, the party becomes indebted to the attorney for his services and disbursements in the suit; and, to insure his pay, the law gives the attorney, not any particular items of cost that may have [476] accrued'in the case, but a lien upon the whole bill of costs for what maybe justly due him for such services and disbursements ; and when his client prevails in the suit, we think the attorney may justly charge, him, among other items, with the amount recovered for travel and attendance, and may rightfully claim a lien upon the judgment to secure the amount thus charged. We think the attorney’s lien, in the original suit between these parties, attached when the certificate of the final decision of the law court was received by the clerk in the county where the suit was pending, and that the subsequent settlement cannot be allowed to have the effect to defeat it. ■ Judgment fir plaintiff for $49,08. Appleton, O. J., Davis, Kent, Dickerson and Danporth, JJ., concurred.