88 Tenn. 496 | Tenn. | 1890
Plaintiffs, as attorneys for Knott, recovered judgment against Bass for $1,500. The judgment was entered in the usual form. At a later day of the same term plaintiff's, by leave of the Court, entered an additional order, giving them a lien on the recovery for their reasonable fees.
Bass appealed in error to this Court. Pending the appeal, Bass mortgaged real estate to the defendant creditors. Subsequently a compromise was had between Knott and Bass, Bass paying to Knott $350 in satisfaction of the judgment. This was done without consultation with or notice to complainants.
The bill is filed to enforce the attorney’s lien
Many authorities have been cited by solicitors on each side bearing upon the question, but in none of them was this direct question presented, • consequently we must determine it upon what seems to us the better, reason.
It is quite ' usual for attorneys who obtain money or property judgment to have a declaration of lien on the recovery for their fees. The Courts invariably recognize the right when it is asked. Such practice, and its recognition, must be understood to have a substantial meaning and purpose, and, to a certain extent, embarrass the right of the plaintiff to appropriate the recovery without the consent of the lawyer who rendered him valuable service in its obtention. The payment to the attorney of record discharges the officer holding an execution from liability to the plaintiff in the execution.
Under our. practice, an appeal to this Court from a judgment at law does not vacate but merely suspends that judgment and such liens as the law attaches to it. On affirmance, the liens attach with full force,' and against purchasers after the rendition in the Law Court, and for twelve months after affirmance. Code (M. & V.), § 3697. While in the present case there was no
It is not necessary that Bass should have had actual notice of the lien declared. He was the defendant, and bound to take notice of the judgment against him in all its parts. When he undertook to settle it he is conclusively presumed to have known all it contained, and to have settled upon that basis.
There was judgment against him, although suspended. That judgment defined an interest in complainants, and he should have fortified against that interest. That interest was as clearly expressed, though not defined in amount, as was the interest of the plaintiff, Knott. His payment of the $350 was a distinct recognition, to that extent, of his obligations to all under the terms of the judgment. Ordinarily, if attorneys allow judgments to go in this Court without continuing or declaring liens, they will lose them as to the adverse party. In this case, however, they were ignorant of what was being done,. and without opportunity to protect themselves. The case was disposed of out of its regular order, and when the attorneys were not required by their duty to their client nor expected to be present, and when the judgment and lien were in as full force as to them as to their client.
With notice of negotiations between the parties they could, by injunction, at least have prevented the payment to Knott until their fees were paid.
The proof shows $400 to be a reasonable fee to complainants; for that amount they are entitled to their decree against Knott.
As there is no proof showing that Bass was guilty of actual fraud, and as parties may compromise in good faith, although the compromise is less than the attorneys’ fee, a decree will be rendered against him for $350, with interest from the date of his payment of that amount to Knott. lie may, if he desires, take a decree over against Knott.
The real estate mortgaged by Bass will be sold as directed by the Chancellqr, and the proceeds, after paying complainants, will be applied to the mortgage.
The decree, modified as indicated, is affirmed with costs.
