The suit is by a personal representative for the death of intestate, an employe. The trial was had on counts 9, 11, and 12 of the complaint, as amended on April 29, 1919, and on the petition for intervention by the attorneys named therein. Respondent in petition objected to filing intervention, moved to strike, pleaded in abatement, moved to transfer to equity, and demurred. After the respective denial or overruling of the same, defendant in the main suit sought to plead, as we will later indicate.
Count 9 charged negligence under subdivision 5 of the Employers’ Liability Act (Code, § 3910); count 11, under subdivision 1; and count 12, under subdivision 2. Demurrer was sustained to all pleas, except that of the general issue. The paramount questions arise from a construction of Code, § 3011, as to attorney’s lien on the suit, when the same was made by the attorneys of record of an administrator of plaintiff’s intestate. The construction of subdivision 2 of that section is found in several recent decisions by this court. Mr. Justice Sayre said of the statute, in a suit by a passenger for personal injury, that it “gives a remedy by providing that attorneys have the same right and power over suits to enforce their liens as their clieiits had or may have.” Western Ry. of Ala. v. Foshee,
“As attorneys at law have a lien for their fees upon all suits brought by them, the defendant in a civil action cannot settle with the plaintiff, so as to defeat the lien of the latter’s attorney or his right to proceed with the case to recover the amount of his fee.”
The suit was by a servant for damages for personal injury. Fuller v. Lanett Bleaching Co.,
Provisions of the statute were construed by Mr. Justice BIcClellan on a bill to enforce the attorney’s lien on lands of his client, in Harton v. Amason,
“While an attorney at law or solicitor in chancery has a lien for his remuneration for professional services in that particular behalf upon a judgment or decree obtained for his client to the extent of his agreed or his reasonable compensation (Higley v. White,102 Ala. 604 ,15 South. 141 ), and a positive lien for his remuneration in that and other instances and circumstances described and defined in Code, § 3011, the law in this jurisdic■tion remains, in the respect to be stated, as it was before the enactment of the statute (Code, § 3011), viz. that an attorney or solicitor has no lien on real estate of his client for his remuneration. Higley v. White, supra; Kelly v. Horsely,147 Ala. 508 ,41 South. 902 .” (Italics supplied.)
In a suit by an injured servant, observation was made by Mr. Justice Gardner that it appears without contradiction — •
“that counsel for appellee who make this motion were the counsel representing the plaintiff in the recovery of said judgment, and that as such counsel they are interested in the judgment, claiming a lien thereon for their attorney’s fee, and are claiming a liability on the part of appellant to the extent thereof.” Empire Coal Co. v. Bowen,195 Ala. 348 , 350,70 South. 283 , 284.
In a suit for damages to an employee (Lowery v. Ill. Cent. R. R. Co.,
“was construed in the case of Fuller v. Lanett Cotton Mills,190 Ala. 208 ,65 South. 61 [meaning Fuller v. Lanett Bleaching Co.,186 Ala. 117 ]. In that case the settlement was made pending the appeal to this court, and it was ruled that plaintiff’s attorney had a right to prosecute the appeal, notwithstanding the release by plaintiff and defendant’s motion to dismiss the appeal, based upon such release in writing. * * * As was said by this court in Fuller’s Case, supra [186 Ala. 117 ], the subject is discussed at great length in a note” to Cameron v. Boeger, 93 Am.. St. Rep. 165, 173, 174.
He quotes from Cameron v. Boeger as follows :
“While honest settlements between the parties to a litigation, made without any intention of taking advantage of their attorneys, are commendable and to be encouraged, collusive and fraudulent settlements, made for the purpose of defrauding the attorneys, are, of course, reprehensible. If such are attempted, the court may interfere to protect the attorney. Its power to do so is inherent, and is founded on its right to protect its own officers against collusion and fraud practiced by the parties to the cause. The authority of courts in this respect has been exercised both under the common law, and under the statutes designed to secure attorneys in the collection of their cоmpensation for services rendered in a cause. The proper course for the attorney is to proceed with the suit, notwithstanding the fraudulent settlement, for the purpose of enforcing Ms claims.”
' In a suit by an administrator for the death, of plaintiff’s intestate, in Denson v. Ala. Fuel & Iron Co.,
“Intervener contends that by his employment as attorney, and the bringing of the ‘suit’ pur *580 suant thereto, he acquired a lien on the suit, that could not be compromised by the parties, and that, until this lien was satisfied, he had the same right and power to direct and continue said suit, to the end of the enforcement of his lien as attorney, for the amount so due him; that is to say, * * * as such attorney of record bringing the suit he may prosecute it to final judgment, for the ascertainment of the amount of his lien, and for. the satisfaction thereof, as though no such compromise had ever been made between the parties to the suit. * * * Under subsection 2 it has been held ' that an attorney for the plaintiff has a lien on the cause of action, and may intervene to prosecute the original suit to a final judgment, notwithstanding the parties plaintiff and defendant have settled the pending cause in so far as the plaintiff’s interest therein is concerned. * * * Nor is the statutory lien on the ‘suit’ made dependent on the service of process. The filing of the complaint at law, or the bill in chancery, in the court having jurisdiction of the cause and in a county of the venue, is the commencement of the suit on which the statute fixes a lien; * * * and the lien existent when the complaint or declaration or bill is filed in the court having jurisdiction of the subject-matter in controversy and in the county of the venue of the action.”
The statute (Code, § 3011) was last construed on a bill seeking to enforce the attorney’s lien of judgment on the lands sold under execution thereon. It was again declared that, viewing the whole statute, the lien of the attorney is not. broader than its terms, which provide: (1) That a lien extends to and upon all papers and money of the client in possession of his attorney, for services rendered to the client in reference thereto; (2) upon suits, judgments, and decrees for money, with the same right and power that the client had or may have over such suits, judgments, and decrees, to enforce such lien, for the amount due him for professional services rendered in that behalf; (3) upon all suits for the recovery of personal property, all judgments or decrees for the recovery of the same, and upon the personal property recovered on such judgments or decrees, unless in the hands of bona fide purchasers; (4) that this lien may be enforced as other liens are enforced. Hale v. Tyson, 202 Ala.
107,
Before the statute was adopted, the lien of the attorney on the money .judgment was well recognized in this state. Ex parte Lehman, Durr & Co.,
“We regard it as settled in this state, by the decision in Warfield v. Campbell,38 Ala. 527 , that an attorney at law, or solicitor in chancery, has a lien upon a judgment, or decree, оbtained for a client, to the extent of the compensation the client has agreed to pay him; or, if there has been no specific agreement for compensation, to the extent to which he is entitled to recover of the client — reasonable compensation for the services rendered. * * •* The lien of an attorney, or of a solicitor, rests on the theory, that he is to be regarded as an assignee of the judgment or decree, to the extent of his fees, from the date of the rendition of the judgment or decree.”
In line with this court’s construction of statutory liens is that of a federal decision where complainant’s solicitor of record conducted a suit, and in the course thereof had consulted with counsel retained by him to the date of final hearing (the petitioner for allowance and enforcement of attorney’s lien), when both he and counsel participated in the argument. On appeal! from decree for complainant the preparation for the' argument was made almost entirely by said counsel on account of the solicitor’s illness, and the appeal was argued by that counsel, who also opposed an order tо show cause why the injunction obtained by complainant should not be sustained, and made suggestions which were adopted by the court on the hearing of that order, and which resulted in a settlement by defendant for a large sum paid complainant without the knowledge of such counsel. Held, that such counsel (the petitioner) did not acquire a charging lien upon the decree and its proceeds, notwithstanding the fact that “he signed the bill pursuant to old equity rule 24” (
“Every bill or other pleading shall be signed individually by one or more solicitors of record, and such signatures shall be considered as a certificate by each solicitor that he has read the pleading so signed by him; that upon the instructions laid before him regarding the case there is good ground for the same; that no sсandalous matter is inserted in the pleading; and'that it is not interposed for delay.”
The Goodwin-Eastman Case relied largely on Central Railroad, etc., v. Pettus,
“That suit was instituted by the holder of the bonds of a railroad company, on behalf of himself and other bondholders, to save from waste and spoliation certain property in which *581 he and they had a common interest. It resulted in bringing into court or under its control a large amount of money and property * * *. His claim to be compensated, out of the fund or property recovered, for his personal services and private expenses, was rejected as unsupported by reason or authority. * * * In respect, however, of the expenses incurred in carrying on the suit and reclaiming the property subject to the trust, the rule, upon a careful review of the authorities, was held to be different. * * * It was consequently held that the complainant in that case was properly allowed his reasonable costs, counsel fees, charges, and expenses incurred in the fair prosecution of the suit, and in reclaiming and rescuing the trust fund and causing it to be subjeсted to the purposes of the trust. * * * It is clear that * * * co-complainants are entitled to be allowed * * * for all expenses properly incurred in the preparation and conduct of the suit, including such reasonable attorney’s fees as were fairly earned in effecting tbe result indicated by the final decree. * * * The court below did not err in declaring a lien upon the property in question, to secure such compensation as appellees were entitled to receive; for according to the law of Alabama, by one of whose courts the original decree was rеndered, and by which law this question must be determined, an attorney at law-, or solicitor in chancery, has a lien upon a judgment or decree obtained for a client to the extent the latter has agreed to pay him; or, if there has been no specific agreement for compensation, to the extent to which he is entitled to recover, viz. reasonable compensation, for the services rendered. Ex parte Lehman, Durr & Co. [supra]; Warfield v. Campbell, supra. * * * The lien of the solicitor rests, by the law of that state, upon the basis that he is to be regarded as an assignee of the judgment or dеcree, to the extent of his fees, from the date of its rendition. This right of the solicitors is superior to any which the defendant corporations acquired, subsequent to the decree, by the purchase of the claims of unsecured creditors.”
Since the allowance of the attorney’s lien upon the judgment for services rendered in its procurement (Warfield v. Campbell, supra [1860]), on reason found in the natural equity which forbids that “a party should * * * run away with the fruits of the cause without satisfying the legal demands of his -attorney” (Rooney v. Second Ave. Rd. Co.,
The statute declaring a lien on the pending suit before judgment in behalf of the attorney of record, being an innovation upon our declared right and lien of attorneys at law, it is necessary to consider how the statute in question is squared with other statutory provisions now pressed on our attention for the first time. The statute providing for the lien of attorneys at law on the pending suit, Code, § 3011, was taken from the Georgia statutes, and the courts had protected the'lien of an attorney of record in a suit by a personal representative for an injury resulting in the death of plaintiff’s intestate. Little, Adm’r, v. Sexton,
These statutes provided that a “chancery court having taken jurisdiction of the administration of the estate of a deceased person, either testate or intestate, or of an estate held in trust, any person owning a claim against such estate for services rendered or supplies furnished subsequent to the death of the testator or intestate, or the creation of the trust estate, may present the same by petition for allowance by such court”; that the court must render a decree for payment of the claims thus allowed or ascertained to be due from the estate upon account taken or stated under the direction of the court, or agreed upon between the parties; that “the petition, answer and other papers relating to such claim * * * must be filed with the papers of the cause pending for the administration of the estate, unless withdrawn by leave of the court.” Thus was provided by statute the ascertainment, allowance, and enforcement of the lien or claim- of such person against a trust estate by a chancery court in a pending cause therein, and by an action at law against the legal representative of the trust estate, where such representative has died, become insolvent, or removed from office without payment of such claim. Con
*582
current remedies at law and in chancery were thus provided by the two statutes. Munden v. Bailey,
In the Codes of 1886 (sections 3564, 3565), 1896 (sections 4183, 4184) and 1907 (sections 6085, 6086), under the chapter of Trusts and Trustees, the authority is given the trustee to render the estate being administered liable for the payment for necessary services rendered him, or for necessary repairs in and upon the estate, or for necessaries furnished him, if he be or become insolvent without making payment, and has not charged the estate with and obtained credit therefor. A inode of enforcing such liability there provided was—
“by ' petition filed in the court of chancery against such trustee, executor, or administrator,” or if the authority of such personal representative has terminated, against the ' successor in trust or administration, “which petition may be filed in the district of the residence of the defendant, or in the district in which such estate is situate,- or is being administered. If pending suit, an abatement occurs by the death or disability of the petitioner, or by the termination of the authority of the trustee, or of his successor, there 'may be a revivor, as in other suits in equity.”
By section 6088 of the Code, it is provided that — ■
“If there be a pending suit, in which the court of chancery has taken jurisdiction of the administration of the trusts, or of the estate, the petition must be filed in, and become a part of the proceedings in such suit.” Munden v. Bailey, supra.
The plea in abatement filed February 22,' 1919, was to the effect that theretofore—
“in this court, a court of competent jurisdiction, a suit was filed by M. W. Justice, the father of Hugh Justice, deceased, the said Hugh Justice, deceased, being a minor, claim *583 ing damages on account of the injuries to and death of the said Hugh Justice, deceased, under section 2485 of the Code of Alabama of 1907,” and “that said suit by M. W. Justice was still pending and undetermined at the time of the filing of the present suit by Jesse C. Justice, as administrator, and * * * is pending at the time of the filing of this plea in abatement; * * * that both the suit which M. W. Justice and the suit which Jesse C. Justice, administrator, brought, claim damages for and on account of the death of Hugh Justice, deceased. Wherefore, defendant says that the present suit by Jesse C. Justice, as administrator of the estate of Hugh Justice, should be abated.”
After the settlement amended counts were filed in the pending cause of J. C. Justice, as administrator, to which the names of Good-w.vn & Ross and diaries A. Calhoun were subscribed as attorneys for plaintiff; and on the next day (April 30, 1919) the petition for intervention was filed in said suit by Charles A. Calhoun and Goodwyn & Ross, containing necessary recitals and prayer to establish and enforce the lien of attorneys in the pending suit. To this petition objections were filed to the effect that the record in the cause, in which intervention was filed, affirmatively showed that joint petitioners, Charles A. Calhoun and Goodwyn & Ross l).ave no lien upon the suit as filed above; that neither Goodwyn & Ross, nor either of them, have any lien as sought tо be set up in the petition for intervention; that Goodwyn & Ross have no right or warrant in law to join in said petition ; and that there is no legal basis for the ascertainment by this court of a petition of intervention in the cause by Goodwyn & Ross.
The construction of the statute (section 3011) sought to be raised by the foregoing objection as to Goodwyn & Ross was further presented in the form of a motion to strike from the files the petition of intervention of said attorneys, Calhoun and Goodwyn & Ross, on the ground that the record in the cause of J. C. Justice, as administrator of the estate of Hugh Justice, versus Gulf States Steel Company, a сorporation, now pending in said court, afforded no basis nor pretext for the maintaining of said petition of intervention as filed. The same reason was assigned for the objection to the filing of the intervention, the motion to strike that petition, and the motion to strike from the petition the names of Goodwyn & Ross where the same appear, which motions and objection were respectively held by the trial court not well taken, or overruled.
Thereafter the defendant, with other pleas, sought to set up the fact that Goodwyn & Ross have no lien upon said suit, not being attorneys of record for plaintiff in the cause, and have no right to maintain the suit. Demurrers were sustained to all of defendant’s ■pleas, except that of the general issue. Under the foregoing authorities construing section 3011 of the Code, Goodwyn & Ross had no lien as attorneys of record in the suit at the date of settlement with plaintiff, and were not proper parties to 'the intervention. This fact was sought to be pleaded, and was exhibited to the court by the record of the cause; but this right was denied to the defendant by the sustaining of demurrers to the pleas, etc. The question of whether Goodwyn & Ross had a right as attorneys- of reсord in said cause to maintain the suit by. intervention, for the establishment and enforcement of their lien upon the pending suit at tlie dale of the .settlement, was the paramount question for decision.
The petition for intervention should have been by Charles A. Calhoun, the sole attorney of record in the pending suit from the time of its bringing to that of the settlement and thereafter to February 22, 1919. The fact that there was, an agreement (offered in evidence) on the part of Goodwyn & Ross and Charles A. Calhoun to bring and prosecute the suit on behalf of the administrator against the defendant, and that this suit was brought pursuant to the contract of employment by the administrator, were questions of fact to be ascertained under the intervention by Charles A. Calhoun for allowance of attorney’s foes as attorney of record for services rendered the estate, pursuant to the contract of employment.
The case was tried on the theory that Goodwyn & Ross were attorneys of record protected in the enforcement of a lien on the pending suit, and were proper parties to the intervention. In this there was error. It should have been by Charles A. Calhoun alone. This fact was presented to the trial court at every stage of the trial to the motion for new trial made on the ground that—
“There was variance between the allegations of the petition of intervention and the proof offered upon the trial, in that the prоof failed to show any lien existing in favor of Messrs. Goodwyn & Ross.”
The charge of the court and the several rulings in the conduct of the trial treated Goodwyn & Ross as attorneys of record protected in a lien on pending suit by the statute. The cause should have been tried on a proper intervention by Charles A. Calhoun, from which is stricken the names of Goodwyn & Ross.
Other questions reserved are not necessary to a decision of the cause, and it is believed would subserve no good purpose that they be discussed at length.
The judgment of the trial court is reversed, and the cause is remanded.
Reversed and remanded.
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