Kansas Pacific Railway Co. v. Thacher

The opinion of the court was delivered by Brewer, J.: This was an action brought by defendants in error to recover certain moneys claimed to be due by virtue of an attorney’s lien under §8, page 110, of Gen. Stat., which reads: “An attorney has a lien for a general balance of compensation * * * upon money due to his client, and 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 lien to that party.” 1, Attorney’s lien for fees. Several questions arise which demand notice. It may be premised, that in examining authorities upon questions concerning attorneys’ liens, this fact should be borne in mind: In some places and at some times the compensation to be received by an attorney for hi's services was fixed ^ gj^ute, and this amount was awarded to the successful party to be recovered of his adversary in addition to the amount due upon the cause of action. This amount was taxed as costs in the case, and though nominally recoverable by the party himself was really for the benefit of the attorney. So also, in some states, New York for instance, where the compensation of the attorney is no longer fixed by statute, but left to the agreement of the attorney and his client, certain fixed sums are taxed as costs to be recovered by the successful party to be applied to the payment of his attorney. [101] While in many states, our own for one, the successful party recovers nothing, either directly or indirectly, for the compensation of his attorney. Each party must bear the full burden of his own attorney’s fees. Manifestly, the comments and decisions upon attorneys’ liens must be materially affected by these considerations. Forsythe v. Beveridge, 52 Ill. 268; Ward v. Syme, 9 Howard Pr. Rep. 16. Eeferring now to the case before us, the first question we notice is this: Will the lien exist where the only claim of the plaintiff is one for damages for personal injury, unliquidated and undetermined by judgment or verdict ? In other words, may a defendant when sued in such an action, and before trial and verdict, settle with the plaintiff, pay him a certain amount, obtain a release and satisfaction of the claim, and thus free himself from all further liability either to the plaintiff or to his attorney, notwithstanding such attorney has prior to the settlement given notice of a claim for a lien, and such plaintiff is insolvent and irresponsible? This question must be answered in the negative. The lien will exist, and the defendant cannot thus defeat it. • It is unnecessary to inquire whether this would have been the rule independent of statute. This gives a lien not simply upon a judgment, but' upon “ money due.” It does not specify for what the money must be due, nor limit the lien to any particular class of liability or form of action. ■ Wherever an action is pending in which money is due, the attorney may establish his lien. And in an action, the verdict and judgment do not create the liability, do not make the “money due.” They are simply the conclusive evidence of the amount due from the commencement of the action. 2 Notice tote in writing. Again, according to the statute the lien dates from the “time of giving notice.” Now in reference to this notice these questions arise: Must it be in writing? Is service upon the attorney-of-record of the adverse party' sufficient? In case a railroad corporation, upon what officer or agent should it be served? Must the amount of the lien claimed be stated? The statute is silent upon [102] these questions; at least it gives no specific answer to them. And yet, taking the statute in connection with other statutes, and with general rules of law, we think the matters not difficult of solution. It is a general rule, though one with perhaps some exceptions, that notices required in legal proceedings must be in writing. This seems essential to the certainty and precision of such proceedings. Gilbert v. Columbia Turnpike Co., 3 Johns. Cases, 108; Miner v. Clark, 15 Wend. 428, dissenting opinion; Lane v. Cary, 19 Barb. 539; Pearson v. Lovejoy, 53 Barb. 407; Wright v. Doolittle, 5 Vt. 390. Now this notice may be fairly classed as one in legal proceedings. It is not to reach money due generally to the client, but money due in the particular action in which the attorney is employed. It presupposes therefore an action or proceeding, employment of the attorney giving the notice in such action or proceeding, money due in such action or proceeding to the party employing the attorney from his adversary, and is itself a proceeding to create a lien upon such money in favor of the attorney giving the notice, and is almost tantamount to a proceeding to compel an equitable assignment of a portion of a claim in suit. The attorney is to give notiee. By the notice thus given he seeks to create a lien upon and establish a right to receive a portion of the money due in that action to his client from the adverse party. * J „ . , 3. Service of notice. It seems to us, 7 .. that it is fairly to be taken as a notice in the action or proceeding, and one which therefore must be in writing. Being a notice in the action, it may properly be served upon the attorney-of-record; for outside of any statutory provisions, the attorney-of-record stands so far as the case is concerned as the representative of the party. He has charge of his interests, speaks for him, represents him in all the matters involved in the action. One of the- notices was served upon the person in charge of the defendant’s depot in North Lawrence. The writer of this opinion considers this a sufficient service upon the corporation, but his associates think differently. And the reasons for this conclusion are briefly these: Sec. 536 of the code of civil procedure, (Gen. [103] Stat. 734,) which provides that “the service of a notice shall be made as is required by law for the service of a summons,” applies simply to the manner of service, that is, whether by reading, or giving a copy, and does not attempt to define upon whom the service may be made to bind the party. And ch. 123 of the Laws of 1871, which authorizes in certain cases the service of process upon railroad and stage corporations by delivery of a copy to a freight agent, ticket agent, person in charge of a depot, etc., applies only to process strictly so-called, or at least does not apply to notices like the one in question, a notice prepared and served by the party, and not issued by or upon the order or at the instance of the court. There is therefore no statute authorizing the service of such a notice upon this agent of the corporation, and it is not a matter at all within the scope of his duties. Hence, neither by statute nor upon general principles is the corporation bound by the notice thus given. Extentof lien-It is unnecessary that the amount claimed be stated in the notice. If the amount is stated, the attorney cannot thereafter c^a'm a larger amount, and the adverse party may make any' settlement with his client not inconsistent with his lien for the specified sum. Where the notice does not specify the amount, and does not claim a lien for anything more than the services in the given action,, the lien is secured for the amount agreed to be paid by the client, or, in the absence of any agreement, for the reasonable value of such services. Where the notice in terms claims a lien for services in addition to those rendered in the case, it is secured to the extent of the amount due the attorney from his client. Where after a judgment is rendered in the district court, a notice is served in which a lien is claimed “ on the judgment, and upon the moneys secured thereby,” and thereafter the judgment is reversed by the supreme court, it-is unnecessary to serve a new notice, but the lien is secured to the extent of the amount claimed and then due. Where a defendant prior to a trial settles the claim sued on, and obtains from the plaintiff a satisfaction and release in full, in [104] which the receipt of a certain amount of money is stated as the consideration thereof, and presenting this release and satisfaction obtains a dismissal of the action, in an action thereafter brought by the plaintiff’s attorney to recover from the defendant for services in said action, and for which he had given notice of a lien, this release and satisfaction may be received as prima facie evidence of the amount paid to the plaintiff, and as an admission on the part of the defendant that such amount was due. Where notice of a lien is given, and before trial and judgment the parties- settle the case and the suit is dismissed, the attorney may maintain a separate action to recover the amount due upon his lien, and in such action the client is not a necessary party. These we believe are all the material'questions in the case, and the conclusions reached upon them compel us to remand the case, with instructions to modify the judgment by striking out the amount allowed for the lien in the case of “Nichols & Kennedy.” In other respects the judgment will be affirmed. The costs of this court will be divided. All the Justices concurring.