Jennings v. Bacon

Gtven, J. I. Matters not appearing in the certificate are urged upon our attention in argument and by an additional abstract. These cannot be considered. [405] WMle we will look to the record to see if the questions certified are involved in the case, we must decide the questions involved and certified upon what is shown in the certificate. See notes to section 4402, McClain’s -Code. The question presented by the certificate is whether the appellant had a lien upon the money due to his client Jennings on the judgment against O. D. Bacon .at the time Jennings assigned the judgment to Charles ■ Stoddard. Section 215 of the Code is as follows: “An .attorney has a lien for a general balance of compen■sation upon, first, any papers belonging to his client which have come into his hands in the course of his professional employment; second, money in his hands belonging-to his client; third, money due his client in the hands of the adverse party or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of .giving notice in writing to such adverse party or attorney of such party, if the money is in the possession or under the control of such attorney, which notice shall state the amount claimed, and, in general terms, for what services; foiwth, after judgment in any ■ court of record, such notice may be given, and the lien made effective against the judgment debtor by • entering the same in' the judgment docket opposite the entry of the judgment,” The appellant had not served notice as required by this section before the assignment, and therefore did not then have a lien under the statute. His contention is that he had a lien under the common law; that the .statute is not exclusive of but additional to the common law; that the lien was valid as against his client without .notice; and that his client could not assign to Stoddard more than he had, which was the judgment subject to the ’ lien. Two classes of liens are recognized at common law in favor of attorneys, namely, a retaining lien and a -charging lien. A retaining lien gives to the attorney [406] the right to retain all papers of his client, which come to him by reason of his professional character, for any balance due to him for his employment; also the right to retain from funds of the client in his hands for his fees and disbursements in the case. This lien is not different from those accorded to all persons in respect to things on which they have bestowed labor. “The charging lien is a special lien to which an attorney or solicitor is entitled upon funds in" court recovered through his exertions. The lien attaches on the fruits of a judgment or decree. It ai taches to the money payable to the client thereunder or by virtue of an award, and to money paid or payable into court in the course of an action or suit, or in any other way if the proceeds of the labor and skill of an attorney.” American & English Encyclopedia of Law, under “Attorney and Client.” By the same authority, and cases therein cited, it will be seen that the party owing the money is not bound by a “charging lien” unless notified thereof. See, also, Wharton on Agency, secs. 625, 626. It will be seen from this statement of the common law that section 215 is a substantial enactment thereof. It omits no part of it, and adds nothing thereto, except the provision for giving notice by entry on the judgment docket. Clearly, the statute stands in lieu of the common law, arid it is under it alone that such liens can be established. It is expressly provided that the lien only attaches “from the time of giving notice in writing.” No such notice having been given at the time the assignment was made, no lien then existed. While as to a retaining lien no notice 'is required, a charging lien does not exist either at common law or under the statute as to either the client or adverse party until notice thereof has been given. The judgment of the district court is affirmed.