62 W. Va. 19 | W. Va. | 1907
The appeal of Charles E. Mylius charges error in a decree, pronounced against him by the circuit court of Upshur county, in favor of W. H. Fisher, for the sum of $392.57, upon the petition of said Fisher, filed in the chancery cause of said Mylius against James L. Smith and others. The demand set up in the petition is for counsel fees, alleged to be due said Fisher as assignee of John S. Fisher, under and by virtue of a written contract between Mylius and said John S. Fisher, which is set forth in full in the report of the case of Fisher v. Mylius, 42 W. Va. 638. It .showed that said John S. Fisher as the attorney for Mylius,- recovered a judgment for the sum of $2,200.00, against the Smiths, on the 15th day of October, 1881, and that thé collection of said judgment is the object of the chancery suit in which said petition was filed, and claimed a lien for fifteen per cent of any money that should be collected by virtue of said suit. By the agreement above referred to, Mylius bound himself to pay to John S. Fisher, for services rendered and to be rendered in the action at law then pending, a certain fee of $50.00 and. in addition thereto fifteen per cent, of the damages which might be recovered in the action, and the petition purports to have exhibited said contract as a part thereof. Mylius’ answer shows, among other things, that the chancery cause, instituted for the purpose of subjecting the real estate of James J. and Floyd Gr. Smith to sale for satisfaction of the judgment and costs mentioned in the petition, was instituted, managed and' conducted by S. V. Woods, as attorney for appellant, without any aid or assistance therein from either John S. Fisher in his lifetime, or W. H. Fisher since his, John S. Fisher’s death, said Woods having been the only counsel. The cause was referred to a commissioner to ascertain and report what. money has 'been
In Fisher v. Mylius, 42 W, Va. 638, this Court construed the contract under which Fisher claims, and declared the law applicable to it in the following terms: “ A client under a contract whereby he agrees to pay an attorney for the prosecution of an -action a fee of fifty dollars and also a percentage of the damages which he mas^ ‘recover’ in the action, is not liable for such percentage of the judgment obtained, but only for a percentage of the damages received.” Speaking of the contract, Judge Deut, delivering the opinion of the Court, said: “ The meaning of this language is plain and unambiguous, and that is that the defendant, out of the moneys received by him by reason of his suit, was to pay the
The substance and effect of the decision reported in 42 W. Va. 638, is, that the action was prematurely brought. It does not preclude a right of recovex-y in Fisher of fifteen per cent, of such sum of money . as has since been received by Mylius. The judgment was reversed because, at the time of the recovei-y thereof, the defendant had received no part of the judgment. On the recovery of the original judgment, Fisher had a lien for the amount that Mylius had agreed to pay him for his services. He had then performed what the contract bound him to do. His conti-act was fully performed, but the contingency upon which'the obligation, on the part of Mylius to pay arose, had not yet happened. This conclusion seems to be fully sustained by principles announced in Renick v. Ludington, 16 W. Va. 378, which holds that ‘ ‘An attorney has a lien on the judgment or decree, obtained by him for his client, for services and disbursements in the case, whether the amount of his compensation is agreed upon or depends upon a qucmtum meruit.” The authorities, English and American, from which this rule has been deduced, are cited and analyzed by Judge Green in the opinion-in the case from which the above quotation has been made, and no good purpose would be subserved by again setting them forth here. It is firmly settled as law throughout this country. After the rendition of said judgment, the defendants therein, having notice of the attorneys’ lien, could not have satisfied it by payment of the judgment creditor to the prejudice of his attorney. Had they done so, they would have been bound to pay it over again to the extent of the
Loss of the lien by Fisher’s failure to prosecute the chancery suit and bring the money into court is asserted by counsel for the appellants, upon the authority of Adams v. Milling Co., 38 Fed. Rep. 281, and Construction Co. v. Township of Gill's Creek, 48 Fed Rep. 145, each denying, to the attorney, any lien upon a fund brought into the federal court, for services rendered by him in and about the same matter in a state court. In the first case, the reason for this conclusion is not stated; in' the other, a reason assigned is that the court cannot extend its protection to services rendered in another wholly distinct jurisdiction. It suffices to say that the only reason assigned for this holding has no application here. The services for which the lien is claimed in this case were rendered in the same jurisdiction and in the same court in which the fund has been collected, and it does not appear that the attorney, in failing or refusing to render further service, without additional compensation, was in fault. Although he was not entitled to demand or have the contingent fee for which he had stipulated, his premature demand and action therefor was not a refusal to perform service, to the rendition of which he was bound by the contract. It had already been performed. It seems that, after the acqusition of the judgment, a controversy arose between the attorney and his client, as to whether he was bound to perform further service without additional pay, and as to whether he was then entitled to receive the contingent fee. The client was himself rather at fault, in that he, misapprehending the legal effect of the contract, demanded service under it to which he was not entitled. The authorities relied upon by counsel for the appellant as sustaining their position are not applicable. The decisions all show instances of failure to prosecute the action to judgment. Until judgment has been recovered, the attorney has not, by the common law, any lien. When, without just
It is also insisted that John S. Fisher waived or abandoned his lien by the assignment of his fees to W. H. Fisher, the appellee. Much authority is cited to show that an attorney, by assigning his fees, relinquishes or waives his lien upon the judgment; but none which intimates that the lien is not assignable. While the attorney, to whom the lien accrued, loses the benefit thereof by an assignment of it, the assignee may undoubtedly assert it. No decision is cited to the contrary of this proposition and no reason is perceived why the fees and the lien securing them are not assignable.
We are of opinion, however, that the decree is for a larger sum than the appellee is entitled to. In order to render the judgment fruitful, it became necessary for Mylius to pay to S. Y. Woods a certain fee of $200.00, and to stipulate with him for the payment, in addition thereto, of 25 per cent, of the amount that should be recovered, for his services in the prosecution of the chancery suit. This expense was incurred for the benefit of both Mylius and Fisher, and, together with all other expenses properly incurred by Mylius in the realization of the fund from the property of the judgment debtors, must be paid out of the same before Fisher can have his contingent fee. In other words, he must take fifteen per
For the reasons stated, the decree will be reversed, the cause remanded, and the appellee required to pay the appellant his costs in this Court.
Reversed. Remanded.