28 Mont. 202 | Mont. | 1903
delivered tbe opinion of tbe court.
Tbis action was brought by tbe appellants, wbo were plaintiffs below, to establish and enforce an attorney’s Ten. Tbe complaint alleges that tbe plaintiffs were employed by one Mary McDonald as her attorneys to prosecute a cause of action on her behalf against Jessie C. Knox, in tbe district court of Silver Bow county; that they performed tbe services required of them and obtained a judgment in tbeir client’s favor for $331.65; that such action bad been commenced and tried in a justice of tbe peace court, and from a judgment rendered therer-in in favor of McDonald an appeal bad been taken to tbe district court by tbe losing party; and that tbe ordinary under
“J. H. Maloney,
“E. M. Cobban.”
Tbe complaint then alleges that for tbe services rendered by these plaintiffs, $300 is a reasonable attorney’s fee; that no part of it has been paid; and that no part of tbe judgment obtained by McDonald against Knox in tbe district court has ever been paid. Tbe defendant McDonald made default. To tbe complaint a separate ■ demurrer was interposed by the defendant Knox, and a like separate demurrer by tbe defendants Maloney and Cobban. Tbe grounds of tbe demurrers are: (1) Misjoin-der of parties defendant; (2) misjoinder of causes of action; and (3) that tbe complaint does not state facts sufficient to constitute a cause of action. These demurrers were by tbe court sustained and judgment for costs entered in favor of tbe defendants Knox, Maloney and Cobban, from which judgment this appeal is prosecuted.
Section 430 of tbe Code of Civil Procedure provides: “Tbe compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. Krom tbe commencement of an action or tbe service of an answer containing a counterclaim, tbe attorney who appears for a party has a lien upon bis client’s cause of action or counterclaim, wbicb attaches to a verdict, report, decision or judgment in his client’s favor and the proceeds thereof in whose ever bands they may come; and cannot be affected by any settlement between tbe parties before or after judgment”
The complaint also alleges that no part of the judgment has ever been paid and that its payment is secured by the appeal bond upon which Maloney and Gobban are sureties. It is not essential to the existence of the lien that the amount of the attorney fee should be definitely fixed. The amount due must be alleged either by stating a fixed sumí or by averring the reasonable value of the services rendered, as is done in this instance. (4 Cyc. Law & Pro., 1022.) This is. an equitable action, brought to foreclose a lien, and ever person interested in the subject-matter of the controversy is a proper party to the 'proceedings. Mrs. Knox, the- judgment debtor, was properly made a party and is in no position to complain, for the payment of money into court by her, sufficient to satisfy this lien would operate to discharge, pro tamio, her obligation to McDonald. The attorney seeking to enforce his lien may bring an independent action against his client or the adverse party, or both. (4 Cyc. law & Pro., 1021, and cases cited.)
Are Maloney and Cobban proper parties defendant? The lien granted by the statute operates as an equitable assignment of so- much of-the judgment as will satisfy the lien, and, for the purpose of securing payment, subrogates the attorney to the right of his client to that extent. (4 Cyc. Law & Pro-., 1005.) Any security, therefore, which the client has for the payment of his judgment, may be availed of for the benefit of the attorney. The appeal bond given by Knox, upon which Maloney and Cobban are sureties^ was for the benefit of McDonald to secure the payment of her judgment; and to- the extent which that judgment is by operation of law equitably assigned to her attorneys, is the security for its payment liable io enforcement by such attorneys. In Clark v. Sullivan, 3 N. D. 280, 55 N. W. 733, the same question was before the supreme court of
Por the reasons stated the judgment is reversed and the cause remanded to the lower court with directions to overrule the demurrer.
Reversed and remanded.
