77 P.2d 1035 | Mont. | 1938
Herbert L. Phelps recovered judgment against the Union Central Life Insurance Company. Plaintiff Baker acted as attorney for Phelps. On appeal the judgment was reversed and the cause remanded for a new trial. (Phelps v. Union Central Life Ins.Co.,
On the filing of the complaint and a supporting affidavit an order to show cause and a temporary restraining order were issued. Defendants thereupon filed a motion, supported by affidavit, to dissolve the temporary restraining order. After hearing, the motion was denied and the restraining order made effective pendente lite. This appeal followed.
The correctness of the court's decision depends partially upon the construction to be placed upon section 8993, Revised Codes. It provides: "The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision, or judgment in his client's favor, and the proceeds thereof in whosesoever hands they may come; and cannot be affected by any settlement between the parties before or after judgment."
Defendants contend that section 8993 gives merely an inchoate right to a lien, but that the lien of the attorney does not actually attach until there has been a verdict, report, decision, or judgment in his client's favor. Plaintiff contends that the lien attaches from the commencement of the action and attaches to the cause of action, and thereafter also attaches to the verdict, report, decision, or judgment in his client's favor.
Section 8993 is a remedial statute which should be construed[1] in advancement of the remedy, and "so as to secure and protect, and not defeat, the rights and objects intended by its provisions." (Crowley v. Le Duc,
The clause in our statute which starts with the words "which attaches" was not intended to restrict but to enlarge or extend the attorney's lien. Without the clause there was room for doubt as to whether the lien would extend to the verdict, report, decision, or judgment. After judgment is recovered, the cause of[2] action is merged in the judgment, and for that reason we think the legislature added the phrase to make sure that the lien which theretofore existed on the cause of action should attach to the judgment and thereafter to the proceeds of the verdict, report, decision, or judgment. Such is the interpretation of an identical statute made by the supreme court of Missouri. (Young
v. Levine,
In Schempp v. Davis,
Defendants contend that if plaintiff has a lien on the cause of action, there is nothing to prevent the defendants from selling the cause of action subject to the lien. Plaintiff contends that under sections 8283 and 8285, Revised Codes, before defendants may sell the cause of action they must pay or tender to plaintiff the amount of his lien. Whether sections 8283 and 8285 have application here we need not determine. This court has held that a cause of action is subject to execution (State *379 ex rel. Coffey v. District Court,
In the Coffey Case it does not appear that there was any objection to the sale other than upon the ground that the procedure in making the levy and sale was not proper. The sale was held to have been improperly made, and it was set aside. The court held that a cause of action was subject to execution, levy, and sale. But there no one was objecting to the sale, as here. In executing the writ, the sheriff with reference to things in action may either collect or sell them. (Sec. 9431.) He has discretion to do either. His discretion can be controlled by the court. The most effective way to accomplish the collection of a thing in action is to permit the pending action to go to trial on the merits. The sale of a cause of action at public auction is a poor method of ascertaining its value.
So far as the case before us is concerned, we hold that the[3] trial court did not abuse its discretion in enjoining a sale of the cause of action under execution. Attorneys are prohibited from buying a thing in action with the intent and for the purpose of bringing an action thereon. (Sections 8980 and 8981.) This would perhaps prevent them from buying a pending cause of action. Had the cause of action been sold at execution sale, it is extremely unlikely that anyone but defendant would have offered a bid. By becoming the purchaser of the cause of action it then, in legal effect, would have become plaintiff and defendant in the action. It would be a violent assumption to suppose that it, as plaintiff, would prosecute with much vigor the case against itself as defendant.
There are cases which, under such circumstances, would permit the attorney to prosecute the action to protect his lien. (2 Thornton on Attorneys at Law, sec. 674, pp. 1076 and 1077.) At least one court held that this results in a "bundle of confusion." (Burpee v. Townsend,
Under facts presenting the same legal question in practically the same manner as here, the supreme court of Iowa held it was *381
proper to enjoin an execution sale by stay order. (BrentonBros. v. Dorr,
The district court of appeal of California, in Meserve v.Superior Court,
This procedure amply protects defendant, because, if plaintiff Phelps recovers judgment, the insurance company is protected by having the right to offset one judgment against the other. (Verry v. Barnes,
We cannot say that the court abused its discretion in granting the order appealed from. The order is affirmed.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur. *382