13 Colo. 423 | Colo. | 1889
delivered the opinion of the court.
This is an appeal from an order of the county court sustaining a demurrer to the amended complaint. The sole ground stated in the demurrer is “that said complaint does not state facts sufficient to constitute a cause of action.” Appellants were plaintiffs below. It appears from the amended complaint, inter alia, that in 1880 and 1881 said plaintiffs were duly licensed and practicing attorneys at law. in this state, as copartners, under the firm name of Johnson & Murphy; and that during said period, as such attorneys, they were retained by and brought suit for one Annie Murray against one William Nye, and recovered a judgment in her favor against said Hye, in the district court of Lake county, for the sum of $6,000. Said Nye appealed said judgment to the supreme court of Colorado, and for that purpose executed and filed an appeal bond, as ordered by said district court, conditioned that said Nye should prosecute the appeal with diligence, and pay said judgment to the extent of
Wye having failed to prosecute his appeal, appellants, as attorneys of Murray, procured an affirmance of the judgment in the .supreme court, according to the usual practice. Thereupon appellants brought an action against Wye, asserting a lien on said judgment for their reasonable compensation in obtaining the same; also averring that said Murray was not made a party to said last-mentioned action, because she disclaimed any interest in said judgment; that in said action judgment was rendered in favor of appellants, against said Wye, for $?50 damages and costs. And it was decreed that plaintiffs have a lien on said first-mentioned judgment therefor; that said last-mentioned judgment remains in full force, unsuperseded and wholly unpaid.
The further averments of the amended complaint, by which its sufficiency must be determined, read as follows: “That the said Murray never paid plaintiffs anything for their services in commencing and conducting said proceedings and obtaining said judgment as aforesaid, and plaintiffs always looked to said judgment, and their lien thereon, for their compensation for their services aforesaid; that the said Murray compromised and released said judgment to said Wye for the sum of $800; that said compromise was made by said Murray and said Wye without the consent or knowledge of plaintiffs, or either of them, and with the mutual intent on the part of said Murray and Wye to cheat and defraud plaintiffs out of theif just compensation for their services aforesaid; that said settlement of said judgment was made by said Wye with full notice and knowledge- that plaintiffs had received nothing for their services, and that they claimed a lien thereon therefor; that no part of said judgment has ever been paid by said Wye, other than said sum of $800; that upon making said settlement said Murray left
Appellees, McMillan, Mater and Boesch, sureties on the appeal bond for Nye, as aforesaid, were defendants below, and interposed a general demurrer to the complaint, with the result above stated. Appellants assign for error the ruling of the court upon the demurrer.
The section of the statute upon which the action is founded reads as follows: ‘‘All attorneys and counselors at law shall have a lien upon any money or property in their hands or upon any judgment they may have attained [obtained] belonging to any client, for .any fee or balance of fees due, or any professional services rendered by them in any court of this state; which said lien may be enforced by the proper civil action.” Gen. St. ch. 6, § 17.
Appellants having obtained for their client, Murray, the judgment against Nye, the statute immediately invested them with a lien thereon to the extent of their reasonable fees, remaining due and unpaid, for professional services rendered by them in obtaining the same. As between appellants and their client, nothing remained to be done to render such lien complete; though, to render the same valid as against the judgment debtor, he must have notice that their fees were unpaid in whole or in part, and that they relied upon the judgment as security therefor. No particular form of notice being provided by the statute, the common-law rule of notice prevails. Smelting Co. v. Pless, 9 Colo. 112; Filmore v. Wells, 10 Colo. 228.
On the affirmance of the judgment against Nye, and his default in the payment or legal satisfaction thereof, appellees, as his sureties, became liable on the appeal bond, in a sum not exceeding its penalty, to the extent
It was unnecessary to allege in the complaint that appellants have a lien upon the judgment. Such allegation would have been but the averment of a legal conclusion resulting from the facts pleaded. The action was brought to enforce the liability of the sureties upon the appeal bond, in favor of the real parties in interest therein. The complaint, though not in form like a common-law pleading, was sufficient in substance to show such liability; and the demurrer thereto, being general, should have been overruled. If appellees had a defense to the action, either in whole or in part, they should have answered the complaint either by way of traverse or by way of confession and avoidánce. It was error to sustain the demurrer. The order sustaining the demurrer is accordingly reversed, and the cause remanded for further proceedings in accordance with this opinion.
Reversed.
