On November 2, 1910, Mrs. Sallie Hilleary, as she then was, brought her action against her then husband, George W. Hilleary, for divorce. Her petition was drawn up and she was represented in the case by Harry A. Prank and D. J. Sullivan, Esquires, as her attorneys, either directly or by attorneys whom they had associated with them in the conduct of the case. The husband, defendant, filed his answer, a general denial. Thereafter, on June 26,1911, plaintiff filed her motion for alimony pendente lite and for suit money. This motion coming up for hearing was denied by the court on February 17, 1911. Thereafter on April 3, 1911, defendant not further appearing, a decree of divorce was awarded plaintiff, together with a judgment of $35 per month for alimony. It appears that subsequently Mrs. Hilleary married and that she appeared in vacation before the clerk of the circuit court in which the decree had been rendered and of which it was of record, and under her new name acknowledged satisfaction of the judgment on July 9, 1912, “for value received,” this being entered on the margin of the judgment record and duly attested by the clerk of the court. Thereafter on April 9, 1913, the above-named attorneys of plaintiff filed their motion to set aside this satisfaction of judgment pro tanto, setting out in the motion that they had rendered services to plaintiff in bringing and prosecuting the cause;
This motion coming up for hearing before the court, the Honorable Rhodes E. Cave presiding, one of
In a letter from Mrs. Hilleary to counsel she has written, among other matters: “I have not and do not expect to collect alimony, but if he (Mr. Hilleary) will not at least pay $25 to you, I will proceed to collect at least that much.” This witness afterwards wrote to Mr. Hilleary and he wrote back that he had an understanding with Mrs. Hilleary’s sister that he was not to pay the alimony. It was after this that the satisfaction of the judgment was entered. This was all the testimony in the case and at its conclusion the motion to set aside the judgment and for execution was denied.
Prom this action of the trial court the petitioners, Messrs. Prank and Sullivan, have appealed to this court.
The learned counsel for appellants have cited possibly all of the principal cases in our State bearing on the right of attorneys to a lien on a judgment for their fees, in several of the cases it having been held that where the judgment had been satisfied or paid without the knowledge, and over the heads of counsel, that satisfaction could be set aside and an execution issued, pro tanto, to enforce the lien of the attorneys for
In the case at bar suit money, so-called, was denied, alimony alone being awarded when the final decree granting the divorce was rendered. In the certified transcript of the record (short form as it is usually called), we find that following the entry of the order denying the motion of petitioners, this notation “memo, filed.” That memorandum was not brought up by counsel, indeed they were under no obligation to bring it up. But as we had no brief on the part of respondent, and the question was a new one, we have •examined that memorandum, and on consideration of it and consultation of the authorities therein cited, have concluded that it states the law of the case so completely that we adopt it as our own opinion in the case. That memorandum of the court is as follows:
“The motion of plaintiff’s attorneys to set aside satisfaction of judgment pro tanto in this case will, in the opinion of the court, have to be overruled.
*709 “As indicated by the court on oral argument, there is a marked distinction between suit money and support money which has been continuously recognized by our courts, and it was never the intention, in the opinion of the court, that suit money should be provided from the support money. For that reason the court indicated to counsel at the oral argument that there having been an application for suit money and for support money, and the allowance of support money alone having been made and the suit money having been denied, there was an adjudication by the court in this case that counsel should not be allowed to recover suit money.
‘ ‘ The previous action of the court to the side, however, the court is of the opinion that an allowance of alimony for maintenance and support is not such a judgment as is contemplated by the statute giving an attorney a lien. That there can be no lien on alimony awarded for maintenance and support has been held under various statutes recognizing attorney’s lien; see Branth v. Branth, 10 N. Y. Supp. 638; Weill v. Weill, 10 N. Y. Supp. 627; Putnam v. Tennyson, 50 Ind. 456; In re Bolles, 79 N. Y. Supp. 530; Canney v. Canney, 131 Mich. 363.
“In some of these cases it is even held that where the attorneys for the wife had, in fact, collected the support money and had it in their possession, they cannot, when sued therefor, set off as against the wife, their claims for attorney’s fees or for costs paid by them in the divorce proceeding.
“For these reasons the motion to set aside satisfaction of judgment pro tanto is overruled.”
In addition to what is so well said by the learned trial judge we find'that in 3 Am. & Eng. Ency. of Law (2 Ed.), p. 456, par. d., the compilers of that work have said: “An attorney is entitled to a lien on the alimony secured by him for his client in a divorce proceeding but only to the extent of his fees and costs
Here there were no taxed fees.
In 4 Cyc., p. 1012, note 81, it is said there can be no lien on alimony' awarded, citing cases, practically the cases cited by the learned circuit judge.
On these authorities, our conclusion is that the action of the circuit court in overruling the motion should be and it is affirmed.