| Minn. | Jan 15, 1863
By the Court.
This is an appeal from an
The lien of an attorney, whatever it may have been at common law, is'in this State regulated by statute, and we must accordingly confine the parties to such only as the statute recognizes and enforces. The provision of statute regulating these matters is contained in section 16, chapter 82 of the Compiled Statutes, which is in the following words:
“ 8eo. 16. An attorney has a lien for his compensation, whether specially agreed upon or implied, as provided in this statute:
“ 1. Upon the papers of his client, which have come into his possession, in the course of his professional employment;
“ 2. Upon money in his hands belonging to his client;
“ 3. Upon money in the hands of the adverse party in an action or proceeding, in which the attorney was employed, from the time of giving notice of the lieu to that party ;
“ 1- Upon a judgment to the extent of 'the costs included therein, or if there be a special agreement to the extent of the compensation specially agreed on,from the time of giving notie© to the party against whom the judgment is recovered. This lien, however, is subordinate to the rights existing between the parties to the action or, proceeding.”
It is evident from the above that where the lien is given upon money in the hands of the adverse party, or upon a judgment, that it is for services rendered in the particular action or proceeding in which the judgment was rendered, or money found to be in the hands of the adverse party. The attorney, therefore, would have no right to include therein any other claim for similar services rendered in another case. He should have enforced his lien for such services, if at all, in the case in which they were rendered. Nor has he any right
•Waite is the only attorney known in this case. Waite & Burt and Wilkinson & Bnrt were attorneys and rendered services in another action. They may, from the facts stated in the affidavits, have a valid claim to the amount stated by ¡them; and under the circumstances detailed they may be ■part owners of the judgment in this action, to the extent of th'eir said claim ; but that right or ownership cannot be established or settled by simple motion of this kind; much less does itamount to an attorney’s lien under the statute. They settled the judgment in which their ser rices were rendered, by taking the note on which this action was brought. If they had, as they claim, an interest in the judgment thus settled, equal to the costs and disbursements included therein^ they had a ¡proportionate interest in the note received in payment ¡thereof; but’I do not see how their interest in said note, or ■’in the judgment subsequently obtained thereon in the name ■of the Plaintiff, who was jointly interested with them, can be tortured into an attorney’s lieu; or indeed how they can justly claim any preference in the proceeds of the judgment over the Plaintiff. We are of opinion, therefore, that, so far as any claim of lien for services rendered by Wilkinson & Burt, or by Waite & Burt, is concerned, the Court very properly overruled the motion.
Let us next inquire as to the lien of Waite for services rendered in this action, and in doing so we will waive all objections that might be urged against the manner in which he has sought to enforce it. Where a lien is to be insisted on, and any person other than the client is affected thereby, it will be observed that notice of the lien must be given to him. But how can he have notice of the lien, unless the amount thereof is specified ? If this be not done he may b e seriously embarrassed and subjected to unnecessary annoyance; for in such a case he must either refuse, in loto, to deliver over the money in his hands, or to pay the judgment again st him, as the case maybe, thus subjecting himself to costs; or if he does the one or the other in part only, he r p.ns the risk of not leaving enough in Jlís hands, or unpaid, to satisfy J,he lien. The nq-
But let us suppose that the amount of Waite’s claim for services in this case, had been specified, and that a mere verbal notice was sufficient; let us see under what circumstances and to what extent he could have secured a lien. By the 4th subdivision of the section above recited, where there has been a special agreement for compensation, the statute gives a lien, after notice, to the extent of the compensation specially agreed ón ; but when there is no special agreement, then the lien extends only to the costs* included in the judgment. There was no special agreement for compensation for services in this action, consequently Waite’s lien would in no event exceed the amount of the costs included in the judgment. We find that there were $7.30 included therein under the name of costs, and the attorney alleges that his services were worth $20. Was he entitled to the sum named as costs ?
This provision in regard to costs cannot be- fully understood without reference to other portions of the law since repealed. When this law was passed, there was another provision of the same act, allowing the party prevailing in an-action certain sums, termed “ costs,” to indemnify him for expenses incurred. Comp. Stat., chap. 62, sec. 1. These costs-were inserted in the judgment, as were also, under the name-of “ disbursements ” and u charges,” the fees of all officers,, witnesses, and referees, and the expenses of commissioners,, printing, &c. Id. sec. 9. Prom the fact that every expense,, except attorneys’ fees, was thus provided for, under the name of disbursements or charges, from the several matters and things for which they were allowed, and the object indicated by the first section of the chapter regulating them, the inference is clear that the several sums thus allowed to the successful party, as costs, were solely to indemnify him for expenses incurred in employing an attorney. Hence, it was perfectly natural to give to the attorney a lien on the judgment to the
As regards the effect of a payment to the sheriff on an execution in his hands, we think, with the Court below, that in ordinary cases it would be sufficient, but under the peculiar circumstances attending the payment in this case, we are in-dined to the belief that, had there been a valid lien, of which the Defendants were properly notified, they could not thus have deprived the attorney of the benefit of it. It looks very much as though it was a plan concerted between one of the Defendants and the Plaintiff, by which the attorney should be deprived of any benefit to be derived from the notice which he’ had given. It is not necessary, however, to decide ■this point.
The order appealed from is affirmed.