115 Ind. 201 | Ind. | 1888
On the 20th day of September, 1886, appellee, James M. Justice, moved the court in writing to eliminate from the record of this cause, filed here on this appeal, certain parts thereofffor the following reasons, namely: That such parts of the record had been interpolated and added to the transcript of the record since the same was filed in this court and since the appeal herein, and had been added without authority of law and without the knowledge or consent of appellee. In support of his motion appellee filed the affidavits of his attorney, of the official stenographer of the court below, and of the clerk of the Fayette Circuit Court, in opposition to appellee’s motion appellant filed the affidavits of himself, of Quincy A. Myers, Esq., an attorney at law of the court below and of this court, of the learned judge who tried this cause below as special judge, of the official stenographer, and of the clerk of the court below, to the effect that appellee’s counsel had agreed in open court before the judge thereof, that the so-called interpolated matter which he had withdrawn from the files of the court should be returned and inserted in its proper place in the bill of exceptions without any objection or exception on his part. “We shall not undertake to reconcile the affidavits or pass upon their preponderance.” Louisville, etc., R. W. Co. v. Boland, 70 Ind. 595.
To us the transcript of the record in any cause, certified by the clerk below under the seal of the court, as is the transcript of the record in the case under consideration, “ imports absolute verity.” DuSouchet v. Dutcher, 113 Ind. 249.
It is shown by the record of this cause that at and before the September term, 1882, of the Cass Circuit Court, there was pending therein an action for the partition of certain described real estate in Cass county, wherein John G. Crockett and others were plaintiffs, and William A. H. Tate and others were defendants. In this action, on the 5th day of October, 1882, the appellee herein filed an intervening petition, wherein he alleged that, on the 3d day of November, 1874, by the consideration of the Fayette Circuit Court, in this State, one Vincent H. Gregg recovered a judgment against the defendant, William A. H. Tate, for the sum of $284.94, with interest thereon at the rate of ten per cent, per annum from that date, together with his costs taxed at $20, which judgment was wholly unpaid; that, on the 1st day of January, 1879, for a valuable consideration, said Gregg sold, assigned and transferred said judgment by his written assignment thereon, to appellee herein, the owner thereof; that, on February 1st, 1879, appellee caused a transcript of such judgment to be filed and recorded in the judgment-docket and order-book of the court below, and such judgment from and after the date last named became a lien upon the lands of defendant, William A. H. Tate, in controversy in the aforesaid action; that in October, 1882, an execution was duly issued on such judgment by the clerk of the Fayette Circuit Court, and was then in the hands of the sheriff of Cass county, which execution commanded such sheriff to levy the same and make the amount thereof of the property of defendant, William A. H. Tate. Copies of such judgment and of the assignment thereof, and of said execution, were made by appellee parts of his petition herein.
And appellee averred that it would be a useless expense to levy upon and sell the interest of defendant, William A. H. Tate, upon such execution, inasmuch as the court below had already directed, in the aforesaid action of pai'tition, the com
Afterwards, the appellant also filed an intervening petition in the aforesaid suit for partition, wherein he claimed that the prayer of appellee’s petition ought not to be granted, because, as appellant averred, one Elizabeth Pollard, a resident of Cass county, in this State, on the 30th day of May, 1877,, made and published her last will and testament, whereby she devised and bequeathed all her property, real and personal, to certain legatees and devisees therein named, who were not her heirs at law, but were strangers to her blood ; that, on the next day, May 31st, 1877, said Elizabeth Pollard died testate, in such county, seized of a large tract of land therein and a large number of out-lots, with valuable improvements thereon, in the city of Logansport;. that in June, 1877, the same William A. H. Tate mentioned in appellee’s intervening petition herein, employed appellant, an attorney at law,, to contest and set aside such last will and testament of Eliza- ■ beth Pollard, deceased; that, by the terms of such employment, said William A. H. Tate agreed to pay appellant the sum of $500 for his professional services as such attorney, to be paid out of the first moneys realized out of any'real estate,, or any interest therein, which he, Tate, might realize from the estate of said Elizabeth Pollard, deceased, by reason of the setting aside of her aforesaid will; that appellant accepted the terms of such agreement and contract so offered by said William A. H. Tate, and then and thereafter actively engaged in a certain suit in his behalf, which he, William A. H. Tate, and others, as plaintiffs, commenced against William T. Wilson, executor, and others, devisees and legatees, in the
Appellant further averred that the whole amount which would be realized from the sale of William A. H. Tate’s interest in the aforesaid lands and lots, would not exceed the sum of $500, the amount justly due appellant from said Tate, at his special instance and request as aforesaid; that appellee and his assignor had notice of the pendency of the aforesaid suit to set aside the will of said Elizabeth Pollard, deceased, and of appellant’s employment as the attorney of William A. H. Tate in the prosecution of such suit, and of the terms as aforesaid of such employment, and of appel
Afterwards, the matters arising under the intervening petitions of appellant and appellee, respectively, were submitted to the court for final hearing; and upon the evidence adduced by the parties respectively, the court found for appellee James M. Justice, Sr., that he was the owner of the judgment against William A. H. Tate, described in his intervening petition herein, upon which judgment there was then due him of principal, interest and costs, the sum of $579.36; that the lien of such judgment was the first lien upon the funds in the hands of the court below and its commissioner, in the aforesaid partition suit, upon the sale of said Tate’s lands therein, and superior to the claim of appellant James M. Justice, Jr., upon such funds; that the commissioner in such partition suit should first pay appellee the sum so due him upon his said judgment out of the funds aforesaid; and that if, after the payment of the sum aforesaid, with interest, to appellee, there should remain any surplus of the funds arising from the sale of William A. H. Tate’s interest in the lands and lots aforesaid, such surplus should be applied to the payment of appellant’s claim of $500 by the commissioner aforesaid — to all of which appellant at the time excepted. Over appellant’s motion for a new trial or hearing, the court rendered its final order and
Error is assigned here by appellant upon the overruling (1) of his motion for a new trial, and (2) of his motion in arrest of judgment, while appellee has assigned, as a cross-error, that appellant’s intervening petition does not state facts sufficient to constitute a cause of action, or to éntitle him to any relief whatever.
Each of the intervening petitions was sufficient, we think, for the purpose for which it was filed. When considered together, in connection with the evidence in the record of this cause, the two petitions fairly present for our decision the only question we are required to consider and decide, namely: Upon the facts stated in such petitions, the substance of which we have heretofore given, and each of which is fairly sustained by the evidence in relation thereto, which of the intervening parties, appellee or appellant, is entitled in equity and good conscience to priority of payment out of the funds of William A. H. Tate, in the hands of the court below or of its commissioner in the aforesaid partition suit? We are of opinion that appellant is entitled of right to such priority of payment out of the funds aforesaid, as between him and the appellee, and that the court clearly erred in finding and decreeing otherwise. It is true, no doubt, that the general lien of the judgment against said William A. H. Tate, owned and held by appellee and described in his intervening petition herein, attached to the interest or share of said Tate in the lands and lots aforesaid, from which the fund belonging to him in the hands of the court or its commissioner was obtained, before appellant acquired or attempted to acquire a statutory lien upon the judgment of the court in such partition suit, for his fees as Tate’s attorney therein, under the provisions of section 5276, R. S. 1881.
But it is equally true that appellant has not asserted, nor has he sought to enforce in his intervening petition herein, any such statutory lien upon the fund belonging to his client,
In Puett v. Beard, 86 Ind. 172, speaking for the court, Elliott, J., said : “ It is generally agreed, both here and in England, that a solicitor has a lien for his costs upon a fund recovered by his aid, paramount to that of the persons interested in the fund or those claiming as their creditors. Barker v. St. Quintin, 12 Mees. & W. 441; Vaughan v. Davies, 2 H. Bl. 440; Wylie v. Coxe, 15 How. 415; Stratton v. Hussey, 62 Maine, 286; Andrews v. Morse, 12 Conn. 444. The reason for this rule is that the services of the solicitor have, in a certain sense, created the fund, and he ought in good conscience to be protected.” See, also, Adams v. Lee, 82 Ind. 587.
In Spencer’s Appeal, 9 Atlantic Rep. 523, decided May 9th,
In Boyle v. Boyle, 106 N. Y. 654, a case very similar in some of its features to the case under consideration, it was held by the Court of Appeals of New York that an attorney, who has rendered services in a partition suit, has a lien for those services upon his client’s share of the proceeds, paramount to the claims of third persons to whom the client, pending the suit, assigns and mortgages his interest in the property as security for money owing them by him. A fortiori, as it seems to us, must it be held in the case at bar, that the lien of appellant for his services, as the attorney of said William A. H. Tate, upon his client’s share of the proceeds of the sale of the lands and lots aforesaid, is paramount in equity and good conscience to the general lien of the judgment aforesaid against the said Tate, owned by appellee and described in his intervening petition herein, upon the share ■of said Tate in such lands and lots, or in the proceeds of the sale thereof in such partition suit.
The bill of exceptions is properly in the record. It was signed by the judge trying the cause, and was duly filed within the time given by the court, and it contained all the evidence introduced by the parties respectively in relation to the liens asserted by each of them, in his intervening petition herein, upon the fund belonging to William A. H. Tate, in the hands of the court below, or of its commissioner, and to the claim of each of them to priority of payment out of the aforesaid fund.
Our consideration of the evidence in the record, and of the-facts established thereby, has led us to the conclusion that the finding of the court below, to the effect that the general lien of appellee’s judgment was paramount to the equitable iien of appellant for his services as such attorney as aforesaid upon the aforesaid fund belonging to said William A. EL Tate, and in the hands of such court or its commissioner, is-not sustained by such evidence, and is contrary to law.
For these causes we think that appellant’s motion for a new trial or hearing herein ought to have been sustained by the court, and that the overruling of the motion was such an error as authorizes and requires the reversal of the judgment below.
The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain appellant’s motion for a new trial or hearing herein, and for further proceedings not inconsistent with this opinion.