Greek v. McDaniel, No. 12,637

No. 12,637 | Neb. | Apr 9, 1903

Albert, C.

On the 1st day of November, 1893, Dorsey McDaniel and Winfield F. Scott recovered a judgment against Oyrus Greek in the district court for Douglas county. Afterward, in the same year, John T. Gathers,. Esquire, the attorney who conducted the litigation on behalf of the judgment creditors, filed a lien on the judgment for services as an attorney, rendered in the case. In 1901 proceedings were instituted to revive the judgment, which had become dormant. The motion to revive was denied, on what ground the record does not disclose. Mr. Gathers, the holder of the attorney’s lien, then asked and obtained leave to intervene, and on the 4th day of May, 1901, filed his petition of intervention, which, omitting the formal parts and the portions stricken out on the order of the court, is as follows:

“Now comes John T. Gathers, intervener, Avho obtained leave of the court to intervene herein and files' this his petition of intervention and for cause of action says and alleges:

“1st. That he is an attorney at law practicing his profession in Douglas county, Nebraska, and has been for more than ten years last past and that on or before the 4th day of October, 1892, he was employed by the plaintiffs in the above-stated case to bring suit against Gyrus Greek, the above-named defendant, and did bring suit as will be seen by record in the above-stated case, and prosecuted the same to judgment against the said Gyrus Greek; and that on or about the 2d day of November, 1893, upon the finding of a jury a judgment was entered in favor of the plaintiffs in the sum of $3,925.61 damages and $92.93 costs.

“2d. This plaintiff agreed to pay this intervener for his services rendered in prosecuting said action to judgment, and the same were valuable, and are worth the sum of $1,500, no part of which has been paid.

“second cause of action.

“This intervener further says and alleges for second cause of action that he expended.in money for and on behalf of the plaintiffs and at their direction the sum of $75 in cost and expenses in prosecuting tlie said action to judgment; that said sum has not been paid to him and is all due and owing.

“This intervener further says and alleges that on or about the--day of November, 1893, he filed an attorney’s lien in the above-stated case in the sum, of $1,575 for legal services rendered and money expended in above-stated case, the filing of which all parties, both plaintiffs and defendant, had due notice.

“2d. This intervener further says and alleges that said judgment became dormant and proceedings were had to revive the same, and this intervener was given leave to revive said judgment to the extent of his attorney’s fees and money expended, as will be seen by reference to record in the above-stated case.”

It does not appear that McDaniel, one of the judgment creditors, entered any appearance in the proceedings. His coplaintiff and the judgment debtor answered separately, pleading the statute of limitations. At the conclusion of the testimony, the court directed a verdict for the intervener against both the judgment creditors and the judgment debtor for the amount claimed, with interest thereon from the date of the filing of the lien, and gave a money judgment accordingly. The parties pleading to the petition of intervention, prosecute separate petitions in error to this court.

It is difficult to determine upon Avhat theory the petition of intervention was drawn. It purports to state two causes of action; one against the judgment creditors for services rendered; the other against all the parties for a revivor of the judgment in favor of the intervener to the extent of his lien. As to the former, the statute of limitations appears to be a complete bar, and should have been sustained. In reaching this conclusion Ave have not overlooked the rule that, ordinarily, the authority of an attorney employed to prosecute a suit continues, by virtue of the original retainer, until its final determination, and the statute of limitations does not begin to run against his claim for services until his relation as attorney to the suit is ended. But that rule has no application to this case. The petition alleges an express contract to pay a specific sum. for the services therein mentioned. Those services, on the face of the petition, appear to have been rendered almost eight years before these proceedings were commenced. When those services were rendered, the intervener’s right of action therefor accrued. The pleadings aver no payment or other fact that would interrupt the running of the statute. Consequently, that cause of action is barred.- This, of course, does not reverse the judgment as to the judgment creditor, McDaniel, who did not plead to the petition.

As to the other cause of action, the statute of limitations does not run against proceedings to revive a dormant judgment, as such proceedings, are but a continuation of the proceedings in • which the judgment was obtained, and, to the extent of his lien, the intervener had the same right to revive the judgment as the original judgment creditors.

It is urged that no notice of the lien was given. The filing of the petition of intervention was in itself sufficient notice of the lien, so Ion g ms it does not appear that the judgment debtor had previously paid the judgment.

It will be observed, however, that the court entered a money judgment against the judgment debtor for the amount of the lien, instead of an order for revivor. This, however, goes to the form and not to the substance. As before stated, the application for revivor was denied as to the judgment creditors. The practical effect of a judgment in favor of the intervener and against the judgment debtor is precisely the same as an order reviving the original judgment in favor of the intervener to the extent of his lien. That being true, we see no good reason why the judgment against the original judgment debtor should not stand.

It is therefore recommended that the judgment of the district court as to Oyrus Greek be affirmed, and as to Winfield F. Scott, reversed, and the cause remanded for further proceedings according to law.

Duffie and Ames, CO., concur.

By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court as to Cyrus Greek is affirmed, and as to Winfield F. Scott, reversed, and the cause remanded for further proceedings according to law.

Affirmed nsr part.