Hutchinson v. Pettes

The opinion of the court was delivered by Royce, J. That the law gave the attorneys, or counsel, of Clark, the plaintiff’s intestate, alien on his judgment against the Hydraulic Company, while the same remained in force, admits of no doubt. But that judgment was reversed upon the plea in abatement, originally interposed by the company, and Clark was left with a right of action against this defendant, for making defective service of the writ against the company. That right of action is asserted in the present suit; and the question is, whether a lien upon the suit and cause of action, was implied, by law, in favor of the attorneys, while the action waspending in court, undecided. We have no occasion to determine the extent of lien, if any, which may have existed as between attorney and client merely, because the lien must appear to be such, in this instance, as, in law, would bind [618] the opposite party. And we are of opinion that no such lien existed. A party has generally the right, independent of his attorney, or counsel, to control and compromise his suit, until final judgment is obtained. Chapman v. How, 1 Taunt. 341. Foote v. Tewksbury, 2 Vt. 99. There is a wide difference between the attorney’s lien upon the suit and cause of action, which, at most, is but contingent and imperfect until judgment recovered, and that upon his client’s papers. The latter does not affect the opposite party, and may be enforced by retaining the papers, however the suit may have terminated. 2 Kent 640. Lambert v. Buchmaster, 2 B. & C. 616. It is true, that the attorney is sometimes permitted to prosecute the suit, for the sole purpose of perfecting and enforcing his lien, when it is made to appear, that a compromise by his client has been collusive, with intent to defeat the lien, and not for the single and bona fide purpose of settling a litigated claim. Swain v. Senate, 5 B. & P. 99. Nelson v. Wilson, 6 Bing. 568. And it is urged, that, as notice of the asserted lien was given to the defendant before he received the discharge from Clark, an inference of such collusion should be drawn in this case, and the discharge adjudged inoperative, as against the claims of the attorneys. But this exception to the general power of a party to settle his pending suit has never, as I can find, been extended beyond the case of a suit for the collection of a debt, and usually an undisputed debt. Courts have expressly refused to extend it to contested actions, sounding in tort, especially, when the damages claimed were unliquidated. Foote v. Tewksbury, above cited. 1 B. & Ad. 660. As to the alleged assignment from Clark to his counsel, it will be sufficient to remark, that the replication alleges, that the defendant was notified of the assignment, before he took the release. This the rejoinder denies; and the exceptions do not state, that any such notice was conceded, or proved, or that any evidence, given on the trial, tended to prove it. Nor is any question distinctly reserved in reference to the assignment. The only remaining question regards the competency of Ingraham, as a witness for the defendant. Had his interest in the suit depended merely upon his obligation to indemnify the defendant, he would have been rendered competent by the discharge which was produced. Ordway v. Bacon, 14 Vt. 378. Hutchinson & al. v. [619] Lull, 17 Vt. 133. It would seem that he needed no release from his own surety, Fullerton, since the discharge given would doubtless protect Fullerton against the defendant. But he admitted, on oath, that he had thus far defended the suit, had employed the counsel, and was holden to see them paid. The truth of this was not controverted. And hence he still had an apparent interest in the event of the suit, as the counsel would acquire a lien upon any judgment for costs, which might be recovered against the plaintiff, and the witness would be relieved, pro tanto, upon his liability to them. His admission as a witness for the defendant, under such circumstances, was therefore errroneous, and for this cause the judgment below is reversed.