Park v. Hutchinson

Hill, C. J. This is the second appeal in this case. In the former appeal the cause was remanded to cancel the deed from Hutchinson to Park on payment of the taxes expended by Park. Hutchinson v. Park, 72 Ark. 509. On the remand it was shown that Hutchinson was unable to give a supersedeas bond, and that, rather than surrender possession to Park, he had paid rent to Park pending the appeal. The court found Park indebted to Hutchinson $100 on this account, and deducted $25 for taxes paid,'and gave judgment for $75 in favor of Hutchinson against Park, and canceled the deed. Park recovered in 1902 a judgment against Hutchinson for $1,540.93, and asked to offset this judgment against him, pro tanto, against that one under sec. 6238, Kirby’s Digest. Mr. D. B. Sain represented PIutchinson in the litigation, and became entitled to $100 as a fee, and, immediately upon the entry of the judgment in favor of Hutchinson against Park, Sain asserted his lien upon it under § 4462, Kirby’s Digest. The court refused to permit the judgment to be offset, owing to the attorney’s lien. Appellant contends that the chancery court in this case did not have jurisdiction to do anything except enter judgment cancelling the deed upon the repayment of the taxes, and that the demand asserted was purely a legal one, enforceable at law, but not a subject of litigation in this case. Appellee contends that equity, having taken jurisdiction for one purpose, is competent to adjust all matters — legal or equitable — growing out of the transaction. This question is not important to the litigants, as the rent is due, whether in law or in equity. The point of importance to them is whether the attorney’s lien on the judgment prevents it being offset. Park had recovered his judgment some years prior to this, and it was in full force when the court gave this jugdment against him. Pie at once sought the offset, and at-that time Sain had no lien upon the judgment, and Park had no knowledge of his claim upon the judgment. Sain acted within the time prescribed by statute, and preserved his lien against Plutchinson, but did his subsequently created lien defeat the right of offset? Park and Sain were creditors of Plutchinson; Park put his debt into a judgment which, proprio vigore, carries certain rights; a lien upon real estate, a lien through execution upon personalty, and the right to use it as an offset against a contrary judgment. Pars, perfected this right before Sain established any rights. Sain also had certain rights against his client, but they had to be worked out through the judgment in favor of his client. The fact that his client failed to pay him his fee should not give his client’s judgment immunity from offset. To defeat the right of offset’ given by statute, the debtor can fail to pay his attorney, and then his attorney his a right to prevent the judgment then acquired being used in liquidation of a prior judgment wherein the judgment creditor is the judgment debtor. This will not be tolerated m the law. This is not 'a question of an assignment of part of a judgment under § 4457, Kirby’s Digest. An attorney’s lien filed after the right to offset the judgment with a prior one has accrued can not defeat such offsetting. The decree is reversed, and cause remanded with directions to permit the offset as prayed.