Bishop v. United Railways Co.

165 Mo. App. 226 | Mo. Ct. App. | 1912

CAULFIELD, J.

(after stating the facts). — I. Defendant complains that, in the single declaration of law given by the trial court, the question of whether O’Connor was discharged for good cause was ignored. This question was properly ignored as it concerned only O’Connor’s right to compensation and his lien therefor, matters which have no relation to the controversy between the parties to this suit. Plaintiffs claim their lien under section 964 of the Revised Statutes of Missouri 1909, the material parts of which are as follows: “The compensation of an attorney or counsellor 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 . . . cannot be affected by any settlement between the parties before or after judgment.” This section is remedial and should be liberally construed. [Wait v. Railroad, 204 Mo. 491, 501, 103 S. W. 60.] Prior to its enactment an attorney in this state had no lien for his services on his client’s cause of action, not even on the judgment. [Alexander v. Railway Co., 54 Mo. App. 66; Frissell v. Haile, 18 Mo. 18.] In case the client settled direct with the adverse party the attorney had no recourse except to follow the proceeds into the hands of his client, who was often insolvent. Thus attorneys were often unjustly deprived of the fruits of their labor. To remedy this evil the attorneys’ lien act was passed. [Taylor v. Transit Co., 198 Mo. 715, 730, 97 S. W. 155.] In this state the case of one who appeared as attorney for a plaintiff after the commencement of the action was as much within the mischief this statute was intended to remedy as was that of the one who appeared at such commencement. Indeed he may have rendered more arduous and effective service than the latter and might suffer more from being cheated out of his share in the fruits of the cause by means of a settlement made over his head or behind his back. There was just as much reason for giving him a lien as there was for giving a lien to the attorney who first appeared, and by construing the section so as to give it to him, no violence is done to the language used. It is true that the section grants the lien only in favor of “the attorney who appears,” but these words may very properly be held to mean “any attorney who appears” (Noyes v. Children’s Aid Society, 3 Abbott’s New Cases, 36), which is in accord with the true purpose of the act. In this respect, it is of some, though perhaps slight, significance, that in stating the meaning of the section our Supreme Court uses the more indefinite article “an” instead of the article “the:” Thus, “the plain and obvious meaning of the section is that an attorney of record shall have a lien,” etc. [Taylor v. Transit Co., 198 Mo. 715, 725, 97 S. W. 155.]

It seems to us evident that the Legislature used the language in question to distinguish an attorney who appears from one who does not appear. As said in the language just quoted “an attorney of record” has a lien. There is a sound and urgent reason for this, as by limiting the lien to an attorney who appears of record the adverse party is advised, as he should be advised, with whom he may deal and whose lien rights he must observe. On the other hand there is no apparent good reason for arbitrarily denying* alien to one attorney rendering service merely because another had already acquired a lien for other services. Cases are quite common where two or more persons have liens on the same property without any special inconvenience arising, and two or more attorney’s liens are not apt to cause any greater inconvenience. This law does not deprive a defendant of any of his rights. It does not deprive him of the right to make a settlement, but in dealing with the plaintiff he must take cognizance of the existence of the attorney’s lien or liens and act accordingly. If such lien or liens-be ignored, he will be required to account to the attorney or attorneys in an action at law for the amount of the lien. So it is in respect to other property; in dealing with the owner of it, if one has notice of the existence of a lien or liens, such lien or liens cannot he ignored. [O’Connor v. Transit Co., 198 Mo. 622, 641, 642, 97, S. W. 150.] There is no significance in the fact that an attorney has a lien “from the commencement of the action.” That language clearly marks the earliest, not the latest, time at which the lien can be acquired under this particular section. [See Bevins v. Albro, 86 Hun (N. Y.) 590.]

So we hold that plaintiffs had a lien upon their client’s cause of action for their compensation and a clear right to recover damages from defendant for deforcing it, notwithstanding O’Connor may have been wrongfully discharged and may still retain his lien for compensation or a right to recover damages from defendant for deforcing it. Of course if there had been a conflict between the liens, as if the aggregate of the attorney’s claims exceeded the whole amount realized, O’Connor’s lien, if not lost or waived, would have priority over that of plaintiffs, but there is no such conflict and the question of priority is not involved; neither is the question of O’Con-nor’s right to a lien.

II. Defendant next contends that the amount of plaintiffs’ recovery should not have exceeded fifty per cent of what was left of the amount paid to the client after deducting O’Connor’s forty per cent. This contention is without merit. Plaintiffs had a lien for their compensation. The statute expressly provides that such compensation “is governed by agreement, express or implied.” Under the agreement in this case plaintiffs were clearly entitled to half the amount paid to their client in settlement without reference to O’Connor’s claim. For this half they had their lien. If it be conceded that O’Connor has a prior lien, still the balance left after satisfying him- would have been more than sufficient to satisfy plaintiffs’ lien. By paying over this balance to the client and ignoring the plaintiffs’ lien defendant became liable to plaintiffs for the vglue of such lien, which was the amount recovered:

The judgment is affirmed.

Reynolds, P. J., and Nortoni, J., concur.