Hillis v. First National Bank

The opinion of the court was delivered by Horton, C. J.: At the time that the First National Bank of Clyde paid to Howard Hillis the $1,500 upon the judgment which Parkhurst held against the bank, Parkhurst’s attorneys had a lien thereon amounting to $750. The bank, to protect itself against this lien, paid the amount of the judgment to Hillis, as the attorney of Parkhurst. The balance [423] of the money, after deducting • the attorney’s lien, was the property of Parkhurst, and was in the possession of Hillis for Parkhurst. The material facts in this case are not disputed. I. It is insisted that the regular mode of procedure would have been to have offset the bank’s judgment against Parkhurst’s judgment to the extent of the former’s judgment against the latter’s. This might have been done by proper action instituted therefor.. (Turner v. Crawford, 14 Kas. 499; Herman v. Miller, 17 id. 328.) But we do not think the bank was limited to this mode of procedure. II. There was an attempt upon the trial to show that the bank had, prior to its judgment, sold property belonging to Parkhurst sufficient to satisfy its judgment; but, in the action brought by the bank against Parkhurst, he expressly disclaimed having any offset against the bank. It also appears from the record that F. C. Parkhurst and others recovered a judgment against the bank for the same property which it is now claimed belonged to George L. Parkhurst. III. It is further insisted that the trial court committed error in admitting evidence as to the contents of the written notice of the attorney’s lien. As a portion of the evidence objected to was competent, we cannot say that the trial court was compelled to sustain the objection, or the motion to strike out all the evidence. (Gano v. Wells, 36 Kas. 688.) Further, Park B. Pulsifer testified that Hillis stated to him the attorney’s lien was $750, but he was afraid it would have to be cut down. This evidence having been received without objection, the . error assigned concerning the contents of the written notice of the lien was immaterial. IV. Hillis requested the court to instruct the jury to return a verdict in his favor. This request was refused, and the court directed the jury to return a verdict for the bank. All the material facts being undisputed, we think there was no material error in the instruction of the court or the judgment rendered. (McCormick v. Holmes, 41 Kas. 265.) The judgment will be affirmed. All the Justices concurring.