127 Ky. 572 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
On May 15, 1901, W. F. Cowles, Geo. S. Cowles, and L. W. Cowles instituted an action in equity against Geo. S. Palmer in the Hickman circuit court, seeking a settlement .of the copartnership existing between them, which was conducted under the -first name of the. Diamond Cooperage Company. Appellees, Bennett, Robbins & Thomas, were employed by
As appellees filed Palmer’s answer and counterclaim several months prior to the time of appellants ’ attachment, appellees’ lien, if they had any, related back and took effect from the time of the commencement of their services, and was superior to the attachment. Bobertson & Cleany v. Shutt, 9 Bush, 659. The only question to be determined then is whether or not appellees were entitled to a lien. Section 107, Ky. St. 1903, provides: “Attorneys-at-law shall have a lien upon all claims or demands, including all claims for unliquidated damages put into their hands _ for suit or collection, or upon which suit has been instituted, for the amount of any fee which may have been agreed upon by thd parties, or in the absence of such agreement for a reasonable fee for the services of such attorneys; and if the action is prosecuted to a recovery, shall have a lien upon the judgment for money or property which may be recovered— legal costs excepted — for such fee,” etc. It will be observed that the statute gives the attorney a lien where the action is prosecuted to a recovery. Under subsection 34, section 732, Civ. Code Prac., the word “action” embraces a demand for a set-off or counterclaim. Therefore the attorney for the plaintiff may not be the only attorney entitled to a lien. There maybe instances where the attorney for the defendant has the same right. Of course, if the attorney for the defendant merely succeeds in defeating a recovery by the plaintiff, he' is not entitled to a lien upon the property involved’ in the litigation. Lytle v. Bach & Miller, 93 S. W. 608, 29 Ky. Law Rep. 424; Wilson
In the case of Damron v. Robertson, etc., 80 Tenn. 372, the Supreme Court of Tennessee, where the rule is the same as in this State, that the attorney has no lien except in cases of a recovery, confirms this view. In that case a suit was instituted for the sale and distribution of ther property of a decedent, and for the purpose of requiring an accounting of advancements received by the heirs. One of the heirs was a defendant in the action, and was represented by attorneys. The latter succeeded in defeating any charge against their client for advancements, and out of the proceeds of the property of the decedent, the fund being in court, their client was adjudged about $1,000. The decedent held the defendant’s notes for sums more than his distributable share of the estate, and thq administrator instituted an action and attached the defendant’s share of the fund in court. In the meantime the attorneys who represented the defendant in the suit for division and settlement intervened in the attachment case, and claimted a priority of lien for their services for the defendant. The lower court sustained the attachment lien, and gave the plaintiff in the attachment the fund as against the attorneys. Upon appeal, the Supreme Court, in reversing the case, said: “The fund in controversy was in custodia legis in the original cause, being money derived from the sale of property for division, and for which there was a decree in that cause in favor of "W. R. Robertson. The services were rendered'by Lamb & Tillman for him in that cause. Those serviced gave them a , lien without any order of court on the fund, which bécámé fixed by'the' posi
For the reasons given, judgment is affirmed.
Petition for rehearing by appellants overruled.