61 Ind. App. 543 | Ind. Ct. App. | 1915
This is an appeal from a judgment of $1,200 obtained by appellee in an action brought by him against appellant for personal injuries alleged to have been received while alighting from one of appellant’s cars. Appellee has filed a motion, verified by his attorney, to dismiss the appeal on the ground that appellant has settled with appellee and that the question now presented by the appeal is a moot one. This motion ■ recites, among other things, the following: that on April 22, 1913, appellant’s motion for a new trial was overruled by the trial court and judgment entered on the verdict; that on May 15, 1913, appellee’s attorneys of record below, D. J. Moran and C. E. Greenwald, gave notice of an attorney’s lien by endorsing the same on margin of the record of the judgment in this cause, signing the same and having it attested by the clerk of the Lake Superior Court; that the transcript of the record was filed in this court September-16, 1913; that appellant’s original brief was filed January 14, 1914; that appellee’s brief was filed February 14, 1914, and appellant’s reply brief was filed February 28, 1914; that prior to January 12, 1914, one H. C. Green, who is general manager of appellant and in charge of its affairs in the State of Indiana opened up negotiations with appellee’s attorneys with the view of settling appellee’s cause of action, securing an accord and satisfaction of the judgment; that the negotiations as far as appellee’s attorneys knew or were concerned were dropped without any agreement being reached; that on or about March 14, 1914, in George Girard’s saloon in the city of Whiting, Indiana, H. C. Green, said general manager for the appellant, informed Charles E. Greenwald that he had settled the above en
To this motion, appellant has filed a verified answer which reads as follows: “The appellant, for verified answer to appellee’s motion to dismiss the above entitled appeal, represents to the court that on the 15th day of May, 1913, after judgment had been entered in the court below, appellee’s attorneys of record gave notice of an attorney’s lien, by endorsing on the margin of the record of said judgment a statement to the effect that they were claiming a lien for attorneys’ fees against said judgment in the sum of six hundred dollars; that subsequently appellee himself called at the office of appellant, in the city of Hammond, on several occasions, and suggested and solicited a settlement of his claim and of said judgment; that appellant, through its then manager, Henry G. Green, after he had been so solicited several times by appellee, made a settlement of said judgment
In this connection, it is proper to say that it seems to be appellant’s idea that, inasmuch as there was no attempt between appellant and appellee to settle the fees of appellee’s attorneys, and because the judgment was left unsatisfied so that appellee’s attorneys may enforce their lien, in case the judgment is upheld by this court, that
We know and appellant concedes that a reversal of the judgment below would destroy the lien of appellee’s attorneys and hence prevent the enforcement ' of such lien against appellant. Such fees and the lien therefor being dependent on a judgment against appellant and appellant having settled with appellee, it would also follow that, in case the judgment below is reversed, such attorneys would likewise lose all opportunity to obtain
Inasmuch as we have no statute in this State providing for a lien by an attorney on his client’s cause of action, there might be some question whether, under the law, this court, upon reversing the judgment below, would be authorized to direct the trial court to allow the plaintiff’s attorneys to proceed with the case below in their own behalf, and, in any event, the ends of justice will, in our judgment, be better served by dismissing the appeal and allowing the present. judgment to stand for the purpose of preserving, the lien of appellee’s attorneys for whatever it may be worth to them. Under the facts in this case, appellant is in no position to complain of such a result.
This conclusion is expressly supported, we think, by the case of Nichols v. Katres, supra, and is impliedly supported by the principles announced in many of the eases herein cited. We may adopt the concluding statement of the court in the case of Nichols v. Katres, supra, as entirely applicable to the facts of this case, viz., “The only question remaining over which a dispute or legal controversy might arise, is the attorney’s lien, its amount and enforcement, which controversy must be settled in the first instance in the lower court. . Nichols, having settled the case with Katres, cannot now prosecute the writ of error for the purpose of defeating an alleged attorneys’ lien which is all there is left in the case.”
For the purposes of the question here considered we have assumed that the settlement between appellant and appellee was valid and binding as
Note. — Reported in 110 N. E. 109. As to lien of attorneys, see 51 Am. St. 251. As to the right of a party who recovers judgment for less than his demand to appeal after satisfaction of judgment, see 16 Ann. Cas. 79; Ann. Cas. 1914 C 301. As to the right of an attorney to a contingent fee as affected by a settlement between client and adversary, see 18 Ann. Cas. 1115; and as to the effect on an attorney’s lien of a collusive settlement after verdict, see Ann. Cas. 1913 E 646.