Keehn v. Keehn

Deemer, J. 2 3 Interveners served no' notice of their petition on any of the parties, but defendants Minnie and Lizzie Keehn appeared thereto, and no notice to them was required. The petition, as will be observed, was filed more than two months after plaintiff had filed her voluntary dismissal. No allowance of temporary alimony was ever made, and the motion therefor does not appear to have been submitted. It is charged in the petition of intervention that interveners were employed by plaintiff to prosecute her action for divorce; that she represented she had good grounds for divorce; that they expended much time and effort in securing evidence, preparing pleadings, and getting the case [470] ready for trial; that they prepared the motion for temporary alimony; that they took default against the main defendant, and delayed proving np at the request of the other defendants; that plaintiff and her husband are justly indebted to them in the sum of $1,000; that Minnie and Lizzie Keehn made a settlement 'with plaintiff, and conspired and confederated together to- cheat interveners out of all compensation for their services, and in pursuance thereof took plaintiff to Kansas, and out of the reach of process; that the conveyance from the husband to his co-defendants was fraudulent as stated in the original petition, and that neither Fred nor Minnie Keehn have any property in the state out of which interveners’ claim may be made, except the real estate in controversy. They therefore asked that their claim be established against husband and wife in the sum of $1,000; that the conveyance from Fred Keehn to Minnie and Lizzie Keehn be set aside; that special execution issue for the sale of the premises. The motion to strike was bottomed on several grounds, among them the following: “(1) That the main action was disposed of when interveners filed their petition; (2) that it was filed without right or legal authority; (3) that the court has no jurisdiction over plaintiff or defendant Fred Keehn; and (4) that interveners have ím legal standing whatever in the case.” [472] 5 6 [470] Code, section 3594, relating to intervention, reads as follows: “Any person who has an interest in the matter in litigation, in the success of either of the parties to the action, or against both may become a party to an action between other persons either by joining the plaintiff in claiming what is sought by the petition or by uniting with the defendant in resisting the claim of the plaintiff, or by demanding anything adverse to both the plaintiff and defendant either before or after issue has been joined in the cause and before the trial commences.” .Section 3595 [471] provides that the intervention shall be determined at the same time tire main action is decided, and that intervenor shall have no right to delay; and section 3596 that the intervention shall be by petition, etc. The procedure adopted in this case is novel, to say the least. Interveners are in a sense joining with plaintiff in claiming what is sought in the petition. But it must be remembered that this is a divorce proceeding, which is purely personal to the plaintiff. Alimony was sought in that proceeding, but simply as an incident to the main suit. Even if alimony or separate maintenance had been the sole relief sought, interveners could not join with plaintiff in obtaining it, for she had the undoubted right of dismissal or of waiver at any time she saw fit. Manifestly, interveners are not joining with defendants in resisting a claim made by plaintiff. They sedm, however,- to be asking for something adversely to both plaintiff and defendant. That something is attorney’s fees for bringing the main suit. In their argument they say they obtained a lien on the property of the main defendant, and that he and his co-defendants are seeking to defraud them out of their fees. • The exact contention is that they had an attorney’s lien upon the land referred to in the petition, which could not be defeated by a compromise and settlement between the parties. Let us see, then, if they had such a lien. In Ward v. Sherbondy, 96 Iowa, 481, and Jennings v. Bacon, 84 Iowa, 406, we expressly held that our statute with reference to attorney’s liens stands in lieu of the common law lien, and that to obtain such a lien the statute must be strictly followed. Even at common law an attorney had no> lien on real estate although land was the subject matter of litigation. McCollough v. Flournoy, 69 Ala. 189; Hanger v. Fowler, 20 Ark. 667; Rowe v. Fogle, 88 Ky. 105 (10 S. W. Rep. 426, 2 L. R. A. 708); Marlin v. Harrington, 57 Miss. 208; Stewart v. Flowers, 44 Miss. 513; Id., 7 Am. Rep. 707 (where the authorities are extensively reviewed). Smalley [472] v. Glark, 22 Vt. 598; Fowler v. Lewis' Adm'r, 36 W. Va. 112 (14 S. E. Rep. 447. Tennessee stands alone in opposition to this Avell nigh universal rule. Ilunl v. McGlanahan, 1 Heist. 503. But even there it is said that the attorney has no lien until the real estate is sold and the sale con-finned for his client’s benefit. Perkins v. Perkins, 9 Heisk. 97. Our statute makes no provision for a lien on real estate in favor of the attorney. See Code, section 321. And Ave have expressly held that an attorney has no lien on real estate to Avhich he has perfected title for his client. Cowen v. Boone, 48 Iowa, 350; Gas Co. v. West, 50 Iowa, 16. Even if he had such a lien, it would be what is knoAvn as a “charging lien” at common law, and notice in Avriting to the adverse party or his attorney, stating the amount claimed, and for what service, would be necessary to the creation thereof. We do not think interveners had a lien for their services on the land in controversy. But interveners say they haA^e a claim against Ered Keehn and wife, that they are non-residents, that the conveyance of the property to Minnie and Lizzie Keehn was fraudulent, and that they are entitled to have the lands subjected to the payment of their claims. This reduces their petition of intervention to a simple creditors’ bill, in which they seek to establish a claim for services against husband and wife, and to subject the real estate, title to Avhich was in Minnie and Lizzie Keehn, to the payment, of their claim. There are several reasons why this may not be done: Eirst. It clearly appears that they, if creditors at all, are subsequent creditors of Ered Keehn, and it does not appear that- the conveyance Avas made for the purpose of defrauding them. Hence they are not in position to attack it. Brundage v. Cheneworth, 101 Iowa, 256. Second. At the time the petition Avas filed plaintiff had dismissed her action, or at least filed a dismissal, and the property Avas no longer in litigation betAveen plaintiff and her husband. The court had lost jurisdiction of [473] the rem, and interveners, as we have seen, had no lien thereon. . They did not cause an attachment to be issued, and the casé is not brought within the exceptions recognized in Corn Exchange Bank v. Applegate, 91 Iowa, 411, and Taylor v. Brownscombe, 74 Iowa, 534. Nor have they exhausted their remedies at law. Wiltse v. Flack, 115 Iowa, 51; Peterson v. Gillings, 107 Iowa, 306. But, aside from this, the claim made by interveners is not only that the conveyance from Bred Keehn to Minnie and Lizzie was fraudulent as to plaintiff, and also incidentally as to them, but that the settlement of the case was also fraudulent as to them, and as to them alone. This appears to be their main contention. Plaintiff does not join in this claim, and they are in no. position to ask to be joined with her. They are mere interlopers, and are not entitled to be heard. Gas Co. v. West, supra. They had no such interest in the subject matter of the litigation, or in the success of either of the parties or against both, as entitled them to come into the case. Moreover, there was in reality no action pending when they filed their petitions. Plaintiff’s dismissal had been on file for more than two months, and nothing remained to. be done but to enter the formal > order of dismissal. Under this state of facts they had no right to intervene, for their intervention would have delayed the disposition of the case. Dupont & Co. v. Amos, 97 Iowa, 484; Teachout v. Railway Co., 75 Iowa, 728. The motion for temporary alimony was disposed of by plaintiff’s voluntary dismissal of the main action. While we have adopted extremely liberal rules regarding intervention, we have never gone to the extent of allowing claims for alimony in a divorce, proceeding which has been voluntarily dismissed by the plaintiff. On the face of the papers interveners do not seem to. have any valid claim against the defendant Bred Keehn. Sherwin v. Maben, 78 Iowa, 467. The ruling of the trial court was clearly correct, and it is AEEIRMED. Weaver, L, talcing no part.