Kusterer v. City of Beaver Dam

56 Wis. 471 | Wis. | 1883

Cassoday, J.

There is no claim that the agreement between the plaintiff and his attorneys was champertous, and we agree with counsel for the plaintiff that it was not within the rule laid down by this court in Allard v. Lamirande, 29 Wis., 502. A single question is, therefore, presented for determination. In an action against a city for personal injury, happening by reason of a defective sidewalk, where the plaintiff had agreed with his attorneys to pay all his own costs and save them from any court costs, and give to them one half of the damages recovered and ail the taxable attorney’s fees, and not to discontinue the action, nor settle the same without their consent, in consideration of their agreement to prosecute the action to final judgment with their best efforts, and they do so prosecute, can the defendant, with knowledge of such agreement and performance, and against the protest of such attorneys, relieve itself from all further liability by paying to the plaintiff, personally, a sum of money in settlement of suit, and procuring from him a release and discontinuance of the action?

In Howard v. Osceola, 22 Wis., 454, it was held that an attorney who has rendered services, and advanced money or made himself liable for the costs, in an action commenced by him on q town order in his hands, has a lien upon the order for the amount; and a judgment of discontinuance of the action, upon the ground that the case, had been settled by the parties in disregard of such lien, was reversed to enable the plaintiff’s attorney to collect the costs of the action and his fees.

In Courtney v. McGavock, 23 Wis., 622-3, Judge Dixon, speaking of the attorneys having a “ hen upon the cause of action,” said: “We are satisfied that independently of an agreement to that effect between the plaintiff and his attorneys, of which the defendant has received notice, no such lien attaches before judgment to a claim for unliquidated damages of this nature. The authorities on this point seem to be very clear. . . . And even after judgment it seems that it is necessary for the attorney to give notice of his lien, and that he insists upon it in order that he may be protected against a settlement in good faith, or one not made for the purpose of depriving him of his costs and disbursements. But where the action is founded upon a contract in writing, or instrument for the payment of money, which contract or instrument is in the possession of the attorney, there the lien attaches before judgment, from the moment the defendant has notice of the employment of the attorney, or from the commencement of the action, and any settlement made by the parties, without discharging the fees of the attorney, is deemed as to him so far fraudulent and void.”

In Shank v. Shoemaker, 18 N. Y., 489, the plaintiff had recovered a judgment for a penalty, and pending an appeal from the judgment the statute imposing the penalty had been repealed, and thereupon the plaintiff settled with the defendant without the knowledge of his attorneys or his knowledge of such repeal. A motion to dismiss the appeal was granted, and the court said: “ There is no case which goes far enough to show that a party who has not obtained a judgment in his favor cannot settle a suit because it may prejudice the possibility, or even probability, that his attorney might obtain his costs by a future trial and a judgment in favor of his client.”

In Pulver v. Harris, 62 Barb., 500; S. C., affirmed, 52 N. Y., 73, the plaintiff recovered judgment for personal injury from an assault and battery, and assigned to his attorney a lien upon the judgment and cause of action as security for his costs, fees, and advances in the case, of which the defendant had notice, and which judgment was reversed on appeal, with costs to abide the event; whereupon the plaintiff, without'the knowledge or consent of his attorneys, and for a sum received in settlement, released and discharged the defendant from the cause of action sued upon, and authorized a discontinuance, and it was “ held that, so far as the judgment was concerned, by its reversal the assignment became a nullity, and the cause of action was not assignable; that the provision in the order granting a new trial, making the costs to abide the event, did not aid the attorney, as it still remained subject to the plaintiff’s control, whether the cause should again be tried, and that, therefore, the attorney, as against defendant, had no lien, either legal or equitable, which could affect the settlement.” It was further held that the defendant had an absolute right to an order of dismissal without terms or conditions. That case was followed in Coughlin v. Railroad Co., 71 N. Y., 443, reversing S. C., 8 Hun, 136, where the plaintiff made an agreement with his attorneys similar to the one in question (escept that the attorneys were to furnish the money necessary to carry on the case), and notice thereof was given to the defendant at the time of the commencement of the suit. The plaintiff thereafter, and without the knowledge of his attorneys, received from the defendant a sum of money in settlement of the claim. It was there held, by the court of appeals, that “ a party having a cause of action, in its nature not assignable, cannot, by an agreement before judgment or a verdict thereon, give his attorney any interest therein.” To the same effect are McBratney v. Railroad Co., 17 Hun, 385; Quiney v. Francis, 5 Abb. N. C., 286; Sullivan v. O’Keefe, 53 How. Pr., 426; Swanston v. Morning Star Miming Co.,. 13 Fed. Rep., 215.

It is very clear that under our statute (see. 4253, R. S.) the cause of action was not assignable. Randall v. N. W. T. Co., 54 Wis., 140. Eor the reasons given, we adopt and follow the rule above quoted from 71 N. Y., 443. The question above put must, therefore, be answered in the affirmative. Impressed with the equity of the claim on the part of the attorneys for the plaintiff,'we have carefully reviewed' many decisions, with the view, if possible, to protect them, at least to the extent of the taxable costs; but as the cause of action was not assignable, and hence remained, prior to judgment, under the absolute control of the plaintiff, and since costs were merely incident to recovery upon the cause of action, it logically follows that the attorneys had' no vested interest, even in such costs, which could survive the settlement of the cause of action. Whatever claim they had for services was against their client on their contract with him. Besides, it is to be observed that that contract is purely exec-utory in its nature. It did not in terms purport to vest any present interest in the cause of action or costs at the time of its execution. By it the plaintiff in terms merely “ agreed ” and “ promised ” to give one half of the damages and ‘‘•all the taxable attorney’s fees.” The observations of the court on that point in Coughlin v. Railroad Co., supra, are, therefore, peculiarly applicable and need not be repeatedi

By the Gourt.— The judgment of the county court is affirmed.