Popplewell v. Hill

Hemingway, J. Whether an attorney’s lien upon a judgment, under section 3935 of the digest, is subject to the judgment debtor’s right of set-off under section 5173 of the digest, is a question not settled by any decision of this court to which our attention has been directed. The question, depending upon similar provisions elsewhere, has been frequently presented to other courts and has not received a uniform answer. 21 Am. L. Rev., 75; 1 Am. & Eng. Enc. Law, 972. But, as we view this case, that question is not presented. The attorney’s lien attaches only to the fruits of litigation and cannot operate upon defensive matters that are consumed in the superior demands of the other party. The Court of Appeals of Kentucky, which takes the view favorable to the attorney upon the question first stated, points out the difference between this case and cases involving that question. It says, “We do not doubt that in an action which is subject to be defeated by a plea of set-off, and which is so barred, the attorney’s claim for services must, like the plaintiff’s demand, yield to the set-off as it would to any other available defense to the action.’,’ Robertson v. Shutt, 9 Bush, 659. We think the distinction taken a manifestly proper one. If so, it is decisive of this case. For in Holliday v. Cohen, 34 Ark., 707-19, this court held that in attachment suits one trial should settle all questions as to the debt of the plaintiff and the damages of the defendant; that the smaller claim should be offset against the larger and a judgment rendered on one side or the other for the balance.. So that in cases like this the smaller claim for damage is, barred by the larger claim fo.r the debt, and under the rule of the Kentucky court the attorney’s claim for services must,, like the debtor’s demand for damages, yield to the consuming property of the larger claim. The court was right in. crediting the damages assessed against the plaintiffs upon the sum found to be due them, and in refusing to enter a judgment for the defendant for the amount of the damages. This may seem a hardship to the defendant; but suppose that separate judgments had been rendered in favor of plaintiffs for their demand and of defendant for his damages ;. that the defendant was seeking to offset one against the other, but the plaintiff’s attorneys resisted and demanded that defendant should pay to him for his fees the full amount recovered against him and collect the judgment in his favor when he could. If such were the case, the defendant could appreciate the reason and justice of the rule. Affirm.