People ex rel. Simon v. Pack

Long, J. Plaintiffs, who were in May, 1893, doing business in Detroit, under the firm name of S. Simon & [670] Co., became joint mortgagees with the firm.,of Heaven-rich Bros, in a mortgage given by Kositchek Bros., of Alpena. In June of the same year, the' sheriff of Alpena county, through his deputy, attached the mortgaged property in an action brought by other creditors against the Kositcheks. Plaintiffs and Heavenrich Bros, brought separate actions of trover against the sheriff and the attaching creditors, in which plaintiffs recovered a judgment for $3,267. Plaintiffs, being unable to collect their judgment, brought this action in the Alpena circuit upon the sheriff’s official bond. While this action was pending, the defendants paid to plaintiffs the amount of the judgment, interest, and costs, less $500, which was retained, notice having been given them by I. S. Canfield that he claimed an attorney’s lien for the sum of $425' on such judgment and the judgment in the Heavenrich case. Thereupon plaintiffs assigned their judgment to Comstock, one of the defendants, who was a surety upon the said sheriff’s bond. At the same time, plaintiffs, through Sloman, Groesbeck & Robinson, their Detroit attorneys, stipulated with defendants’ attorney for the discontinuance of the suit; but no order of discontinuance was ever entered. It appears that Mr. Canfield, an attorney residing at Alpena, had been employed in June, 1893, through Sloman & Duffie, for plaintiffs, to assist them in the litigation against the defendants in those lien suits. Canfield, as plaintiffs’ attorney, had demanded the mortgaged property, and, being refused, commenced the trover suit, signing, under instructions, the writ by which such suit was commenced, ‘ Sloman & Duffie, Attorneys for Plaintiffs, Frank Emerick and I. S. Canfield, of counsel.” Sloman & Duffie drew the declaration in said cause, signing and indorsing the same in like manner, and sent it to Canfield for filing and service. The notice of retainer and plea in both of said causes were directed to and served upon Canfield, who noticed the cases for trial, filed notes of issue with the clerk, opposed the application of defendants, looked up the testimony for plaintiffs by their re [671] quest, talked with their witnesses, and secured their attendance, consulted with and attended the trial with plaintiffs, and actively assisted them. On motion of Can-field, judgment was entered in plaintiffs’ favor in those suits. He also taxed the costs, took out an execution upon said judgment, and looked after the same, and caused its return. The judgment not being collected from the sheriff, Canfield, at the request of the aforesaid attorneys, commenced the action upon the sheriff’s official bond to enforce its collection, prepared the declaration, noticed the same for trial, opposed in court a motion made by defendants for a continuance, and did all of the work incident to the preparation thereof for trial, all of which was performed for and at the request of said plaintiffs, through their attorneys. After defendants paid plaintiffs, and the stipulation discontinuing suit had been filed, Can-field, to preserve his attorney’s lien, obtained an order striking said stipulation from the files, and reinstating the case for trial; and in March, 1897, the case was tried at the circuit, and verdict and judgment entered for $217.50, being the amount of Canfield’s lien, in favor of the plaintiffs, from which both of said parties to the original suit have appealed. Mr. Canfield tried the case for plaintiffs, and Sloman & Groesbeck appeared for the plaintiffs, and J. H. „Cobb for defendants. We are satisfied that the court was not in error in instructing the jury that Mr. Canfield was employed as attorney and counsel in the suits in question. The court left it for the jury to determine what those services were worth. The only question which we need discuss is whether Mr. Canfield, as plaintiffs’ attorney, has a lien for his services upon the judgment obtained by the plaintiffs against the defendants. The contention of counsel for plaintiffs seems to be that Mr. Canfield, being merely counsel in the case, had no lien upon the judgment. A similar case was before this court at the October term, 1896, in a mandamus proceeding. Heavenrich v. Alpena Circuit Judge, 111 Mich. 163. There the same question [672] was raised, and the mandamus denied. The court below held that Mr. Canfield had a lien upon the judgment; and it was said by this court that the case was governed by Weeks v. Wayne Circuit Judges, 73 Mich. 256, and Carpenter v. Myers, 90 Mich. 210. The present case is ruled by those cases. Judgment affirmed. The other Justices concurred.