Haynes v. Perry

Blandford, Justice. Haynes, as an attorney at law, placed a fi.fa. in favor of Coleman against Herndon A Shepard in the hands of the sheriff, and instructed him to raise the money due thereon. Haynes brought a rule against Perry, the sheriff, requiring him to pay the money due on thzfi.fa. to him. The sheriff answered the rule, and set up that the defendants liad settled th & fi.fa. with the plaintiff, Cbleman, and presented an order to him from Coleman to .turn over they?. fa. to them, retaining five dollars and ninety cents attorneys’ fees. This answer of the sheriff was not traversed, and the court discharged the rule. To this decision Haynes excepted, and error is assigned thereon. It is declared in section 1990, Code of 1863, that parties cannot, by a settlement between themselves, defeat the attorney of any lien or claim under contract with his client, of which the opposite party had notice prior to the consummation of such settlement. There never has been any alteration of this section of the first Code; it is the law now. The answer of the sheriff, not being traversed, is to be taken as true; and if the parties, plaintiff and defendants, had settled the fi.fa., the sheriff had no right to levy the same; it was functus officio. But if the attorney, Haynes, had a lien on they?./», for his fees due in that case, or on some other account, of which the defendants in [35] execution had notice, he should have traversed the sheriff’s answer, and presented his claim in an iésuable form, which he did not do; and having failed to pursue this course, there was no error committed by the court in discharging the rule against the sheriff. Judgment affirmed.