Myers v. McHugh

Lowe, J. Among the several points made by the appellants, two or three are believed to be well put, and must be sustained, namely: the allowance of a hundred dollars to Knapp, Stout & Co., being the amount-paid by them to Mary Ann Myers for the relinquishment of her dower; and secondly, the priority .given in the payment of the claim of said firm over that of O’Neil and Harvey out of the funds set apart for that purpose. As it respects this latter point, it is sufficient to state that section 2708, Rev. of 1860, gives to attorneys a lien on money due to their client, and in the hands of the adverse party in an action or proceeding, in which they were employed from the time of giving notice of the lien to that [338] party; and. inasmuch as the facts show that O’Neil & Harvey were the attorneys of the plaintiffs, and the notice of their lien to the defendant, McHugh, was prior to any service of notice of the garnishment in favor of Knapp, Stout & Co., we see no reason whatever for postponing the rights of the former to those of the latter, and it was error to do so. In relation to the other point a bare statement of the circumstances under which Knapp, Stout & Co. paid the $100, for the purpose named, will exhibit the incorrectness of the Court’s ruling. The plaintiffs had brought their suit suit against McHugh for the $750, being the balance of the purchase-money unpaid, alleging that they had procured a release of the dower above referred to. McHugh, in his answer, denied the legal sufficiency of such release; and pending the trial of this issue, and after Knapp, Stout & Co. had garnished McHugh, they, upon their own motion, and without the knowledge, consent, or procurement of the plaintiffs, paid Mary Ann Myers, the wife of Jacob Myers, $100 for another and unexceptionable release of her dower to the land purchased by McHugh, and thereupon McHugh withdrew his defense against the payment of the $750, and only asked the Court that Knapp, Stout & Co., and the attorneys aforesaid should establish the amount of their respective liens against the money in his hands due the plaintiffs. Knapp, Stout & Co., besides their garnishee debt, put in the $100 paid for the release of the dower aforesaid. This was improperly allowed them, for the reason that they were mere volunteers in this matter, acting wholly without the concurrence or knowledge of the plaintiffs, who were not only deprived thereby of the benefit of a judicial decision upon the sufficiency of the release which it was supposed they had themselves obtained from Mary Ann Myers, but are charged a premium of $100 as the price of such intermeddling with their own matters. [339] Tbe law, under such circumstances, can raise no implied promise from plaintiffs to refund this $100 to Knapp, Stout & Co., and they must abide the consequences of their own voluntary act. It would seem to follow, from the view which we have here taken of this matter, that the plaintiffs ought not to be charged with the costs of suit accruing before the date of the release of dower obtained by Knapp, Stout & Co., as it was ruled in the court below. But when we consider how largely questions of costs are left to the discretion of courts, and the different antagonistic interests which were involved in this case, and especially the doubt in which the record leaves the question whether the first release of dower was sufficient or not. We are not inclined to change the ruling in that respect, nor are we, as it respects the order allowing O’Niel and Harvey but $75 instead of $150. In the absence of any affirmative showing to the contrary, we may presume the court adjudged correctly in this particular. We give, of course, no sort of weight to the fact that the attorneys of Knapp, Stout & Co. admitted their claim against the plaintiffs to be just and true, for the reason that the admission does not come from the party who had the money to pay. The judgment below will be reversed, with the modification herein above suggested. The cost of this appeal to be paid by Knapp, Stout & Co.