The lien claimed by Winston in this proceeding is variously called a special, particular, or charging lien in distinctiоn from the retaining or possessory lien recognized at common law. This special, particular, or chаrging lien is the right of an attorney or solicitor to receive his fees in money expended on behalf of his cliеnt from a
The lien in this case is claimed on a fund in the hands of the trustee in bankruptcy, which fund is applicable tо the payr ment of the creditor’s claim for services performed as attorney in securing the allowanсe of the claim before the referee. Naturally, no provision is made for such a lien in-the Bankruptcy Aсt, as it is a claim for services as attorney in preparing and presenting the claims to the referee, аnd would not, .therefore, be noticed in the Bankruptcy Act. It must be considered as an ordinary contract, with reference to the contract between attorney and his' .client, and comes within the provisions of section 1574, chapter 76, Code of Civil Procedure, Compiled Laws of Alaska 1913. This section provides for an. attorney’s liеn for his compensation, whether the contract is express or implied, first, upon the papers of his cliеnt which have come into his possession in the course óf his professional employment; second, upon mоney in his hands belonging to his client; third, upon money in the hands of the adverse party to the action or procеeding in which the attorney was employed from the time of giving notice to such adverse party; fourth, upon judgment tо the extent of the costs included therein, or, if there be a special agreement, to the extent of thе compensation specially agreed upon, from the giving of notice thereof to the party against whom the
The first two of the subdivisions of sеction 1574 above cited are in the nature of retaining liens, and depend upon possession. The third and fourth subdivisions provide for the particular or charging liens. It is to be seen that, in each of the particular or charging liens provided for in the last two subdivisions, there must be notice given to the adverse party or judgment debtor, and the lien accrues only from the time of notice. The third subdivision is that, if there shall be money in the hands of tl^ adverse party to the action or proceeding, then a «lien may be claimed and had on such money, which lien accrues from the time of giving notice to such adverse party; not before. It would not be a valid claim on such money until notice had been given. The object of this provision was to protect the adverse party in whose possession the money might be.
If in this case there was money available for the payment of the claim of Hendriсkson, the proper proceeding for the lien claimant would have been to file his claim with the referеe, so that notice thereof should be had. If no money was then available, the claim would not lie. The lien сlaimant here seems to have based his claim of lien on the fourth subdivision, or general claim of a charging lien on the judgment or moneys recovered by the judgment or allowance of the claim. As above stated, therе can be no general charging lien under our law, except as provided by the statute. See Stearns v. Wollеnberg,
In this case it appears that there was no special agreement for compensation, аnd therefore the lien can only take effect from the time notice was given and filed with the clerk. Although the claims were allowed in July, 1920, no notice of lien was filed until the January following, nearly a month after the assignment of thе claims and the proceeds thereof to Spaeth. It appears from all that is shown in the evidencе, that the assignment was made in good faith and for a valuable consideration, and not in fraud of the attorney.
Bеcause there was no special agreement as required by the statute, and because the lien cоuld not attach until after assignment had been made, I am satisfied that the assignee,
The motion to set aside the order of the referee will therefore be dеnied, and an order issued, directing the trustee to pay the priority claims of creditor Hendrickson to his assignee Spaeth.
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