Casey v. March, 30 Tex. 180

30 Tex. 180 | Tex. | 1867

Smith, J.

It cannot be denied that an attorney at law has a lien upon the papers and documents received by him from his client, and money collected for him in the course of his profession, to secure and pay himself for the fees and disbursements made by him on account of such claims, and to compensate himself for his services in the collection of the money; but this lien, like that of a factor or mechanic, rests upon possession, and cannot vest until possession be obtained, (12 Wend., 261,) and at best only amounts to a right to retain the articles or money in hand, and not one that can be enforced through the courts like a mortgage or pledge. And when this possession is voluntarily given up, the lien is lost. (11 N. H., 163.)

In England and many of the States of America there. is a species of attorney’s lien on judgments obtained by him recognized as necessary and proper to secure him in the fees and disbursements he may make in that particular case; but this, unlike the lien above referred to, is predicated on the fact, that he pays for and makes the said disbursements for his client in the progress of the suit, and for that reason he is regarded in equity as an assignee of the judgment to the amount thus expended .by him. (4 N. H., 347; Martin v. Hawks, 15 Johns., 405.) And this character of attorney’s lien does not rest upon the fact of possession, but on .the equity of his claim on the judgment. And this is the nature of the attorney’s fees which in Hew York and some other states are recognized as secured by a lien on the judgment, as if he were an assignee of the same to that extent. (12 Wend., 267.) This character of attorney’s lien is limited to the taxable fees and disbursements made by the attorney in the cause, and does not extend to commissions or compensation for services rendered in procuring the judgment. (8 Johns., 335; 22 Peck, 210.)

In the case of Wright v. Cobley, 1 Foster, 340, it was held that this lien did not extend to judgments, for the reason that the indispensable requisite to the lien (possession) is wanting. Of a judgment there can be no possession by the attorney; it is but the decision of a court upon a claim, and exists only in contemplation of law. The records of the court are the evidence of the decision or judgment of the court, and are in the custody of a public officer, over which neither attorney nor client has any control or rightful possession.

This court, in the case of Kinsey v. Stewart, 14 Tex., 457, held that an attorney at law had a right to retain from the moneys collected by him the fees to which he was entitled, as a compensation for his services in collecting the money, and that the acceptance of an order from his client for the amount collected did not operate as a waiver of his lien upon the money held as aforesaid.

In the case of Able v. Lee, 6 Tex., 431, the court says, in effect, that an attorney has a general lien for his professional dues upon the papers of his client in his hands and moneys collected and in his possession. But that an attorney, except for costs, has no general lien upon a debt before the money is collected.

There are some conflicting decisions in the American courts upon the extent of the attorney’s lien. (13 Ark., 193; 14 Ga.) But from the great preponderating weight of English and American authorities, we are of opinion that the lien of an attorney for his services does not extend to a judgment, or the money before it shall have been collected by him, and that there was no error in the court below overruling the appellant’s application or motion, and the judgment is

Aeeirmed.