Forbush v. Leonard

By the Court. Emmett, C. J. This is an appeal from an [305] order denying a motion made in the case- by Franklin H.. Waite, Esq., the attorney for the Plaintiff, on behalf of him- - self as such attorney, and of Waite and Burt, who had render- • ed services to the Plaintiff as attorneys in another action, commenced by Wilkinson and Burt, his attorneys, and out of which the present action seems remotely to have arisen. The object of the motion was to enforce an attorney’s lien on the judgment rendered in this action, for the services rendered by said several attorneys, in this and the other action referred to. The lien of an attorney, whatever it may have been at common law, is'in this State regulated by statute, and we must accordingly confine the parties to such only as the statute recognizes and enforces. The provision of statute regulating these matters is contained in section 16, chapter 82 of the Compiled Statutes, which is in the following words: “ 8eo. 16. An attorney has a lien for his compensation, whether specially agreed upon or implied, as provided in this statute: “ 1. Upon the papers of his client, which have come into his possession, in the course of his professional employment; “ 2. Upon money in his hands belonging to his client; “ 3. Upon money in the hands of the adverse party in an action or proceeding, in which the attorney was employed, from the time of giving notice of the lieu to that party ; “ 1- Upon a judgment to the extent of 'the costs included therein, or if there be a special agreement to the extent of the compensation specially agreed on,from the time of giving notie© to the party against whom the judgment is recovered. This lien, however, is subordinate to the rights existing between the parties to the action or, proceeding.” It is evident from the above that where the lien is given upon money in the hands of the adverse party, or upon a judgment, that it is for services rendered in the particular action or proceeding in which the judgment was rendered, or money found to be in the hands of the adverse party. The attorney, therefore, would have no right to include therein any other claim for similar services rendered in another case. He should have enforced his lien for such services, if at all, in the case in which they were rendered. Nor has he any right [306] to. J-oi-n therewith the claims of other attorneys for services rendered in another action or proceeding. •Waite is the only attorney known in this case. Waite & Burt and Wilkinson & Bnrt were attorneys and rendered services in another action. They may, from the facts stated in the affidavits, have a valid claim to the amount stated by ¡them; and under the circumstances detailed they may be ■part owners of the judgment in this action, to the extent of th'eir said claim ; but that right or ownership cannot be established or settled by simple motion of this kind; much less does itamount to an attorney’s lien under the statute. They settled the judgment in which their ser rices were rendered, by taking the note on which this action was brought. If they had, as they claim, an interest in the judgment thus settled, equal to the costs and disbursements included therein^ they had a ¡proportionate interest in the note received in payment ¡thereof; but’I do not see how their interest in said note, or ■’in the judgment subsequently obtained thereon in the name ■of the Plaintiff, who was jointly interested with them, can be tortured into an attorney’s lieu; or indeed how they can justly claim any preference in the proceeds of the judgment over the Plaintiff. We are of opinion, therefore, that, so far as any claim of lien for services rendered by Wilkinson & Burt, or by Waite & Burt, is concerned, the Court very properly overruled the motion. Let us next inquire as to the lien of Waite for services rendered in this action, and in doing so we will waive all objections that might be urged against the manner in which he has sought to enforce it. Where a lien is to be insisted on, and any person other than the client is affected thereby, it will be observed that notice of the lien must be given to him. But how can he have notice of the lien, unless the amount thereof is specified ? If this be not done he may b e seriously embarrassed and subjected to unnecessary annoyance; for in such a case he must either refuse, in loto, to deliver over the money in his hands, or to pay the judgment again st him, as the case maybe, thus subjecting himself to costs; or if he does the one or the other in part only, he r p.ns the risk of not leaving enough in Jlís hands, or unpaid, to satisfy J,he lien. The nq307 tice in this case did not specify any amount. It was only to the effect that he, Waite, had a lien on the judgment for services, which, we think, was wholly insufficient; and certainly gave no intimation to the Defendants that-Wilkinson & Burt, or Waite & Burt, had a claim which was also a lien on the judgment. But let us suppose that the amount of Waite’s claim for services in this case, had been specified, and that a mere verbal notice was sufficient; let us see under what circumstances and to what extent he could have secured a lien. By the 4th subdivision of the section above recited, where there has been a special agreement for compensation, the statute gives a lien, after notice, to the extent of the compensation specially agreed ón ; but when there is no special agreement, then the lien extends only to the costs* included in the judgment. There was no special agreement for compensation for services in this action, consequently Waite’s lien would in no event exceed the amount of the costs included in the judgment. We find that there were $7.30 included therein under the name of costs, and the attorney alleges that his services were worth $20. Was he entitled to the sum named as costs ? This provision in regard to costs cannot be- fully understood without reference to other portions of the law since repealed. When this law was passed, there was another provision of the same act, allowing the party prevailing in an-action certain sums, termed “ costs,” to indemnify him for expenses incurred. Comp. Stat., chap. 62, sec. 1. These costs-were inserted in the judgment, as were also, under the name-of “ disbursements ” and u charges,” the fees of all officers,, witnesses, and referees, and the expenses of commissioners,, printing, &c. Id. sec. 9. Prom the fact that every expense,, except attorneys’ fees, was thus provided for, under the name of disbursements or charges, from the several matters and things for which they were allowed, and the object indicated by the first section of the chapter regulating them, the inference is clear that the several sums thus allowed to the successful party, as costs, were solely to indemnify him for expenses incurred in employing an attorney. Hence, it was perfectly natural to give to the attorney a lien on the judgment to the [308] > extent of the several sums allowed to his client for the purpose of employing an attorney, or to the extent of the costs ^included in the judgment. It ydll readily be seen, therefore, 'that the term “ costs,” as used in the section which gives an -attorney a lien on the judgment, had a technical meaning entirely ¡satinet and different from that ordinarily attached to the doréis» — that it did not include “disbursements” or ¿barges” of any kind, and that it referred only to the sums rallowed the party to indemnify him for the expense of em- ) ploying an attorney. These costs, sometimes called statutory <• costs, were, however, some time before the commencement of '•this action, abolished by Statute Laws of 1860, p. 244, consequently there is nothing to which the lien could now attach. This leaves the attorney without a lien on a judgment, except in cases where there is a special agreement in regard to compensation. And it follows that the attorneyis not in this case entitled to a lien even to the extent of the $7.30 assessed against the Defendants as costs, because the sum must of necessity have been for disbursements and charges, as contradis-tinguished from costs, as the term is used in the statute under ■ consideration. As regards the effect of a payment to the sheriff on an execution in his hands, we think, with the Court below, that in ordinary cases it would be sufficient, but under the peculiar circumstances attending the payment in this case, we are in-dined to the belief that, had there been a valid lien, of which the Defendants were properly notified, they could not thus have deprived the attorney of the benefit of it. It looks very much as though it was a plan concerted between one of the Defendants and the Plaintiff, by which the attorney should be deprived of any benefit to be derived from the notice which he’ had given. It is not necessary, however, to decide ■this point. The order appealed from is affirmed.