8 S.D. 244 | S.D. | 1896
This appeal is from an order of the trial court denying an application to set off pro tanto a judgment for costs, entered in defendant’s favor against plaintiff, in an action in which plaintiff obtained the judgment against defendant, which is sought to be made the subject of a set-off. Practically, but one question of law is presented, and the essential undisputed facts are, in effect, as follows: The original trial of the cause resulted in a judgment for plaintiff, which was reversed on appeal to this court (52 N. W. 873), and a new trial was ordered. The costs were taxed herein against the plaintiff in defendant’s favor at $188.25, and judgment therefor was accordingly entered in the circuit court: A retrial in that court resulted in a judgment for defendant, which was also reversed on appeal, arid the costs were taxed in plaintiff’s favor against defendant at $69.85. Immediately after judgment therefor was docketed in the court below, the intervener herein, Joe Kirby, Esq., who had been plaintiff’s attorney at all times during the litigation, filed an attorney’s lien for the full amount of said judgment, and caused execution to be issued thereon, and the property of the defendant to be seized thereunder. All interested parties were before the court. Plaintiff was insolvent; the lien was effectually docketed as required by Subdivision 4 of Sec. 470 of the Compiled Laws; and there is no dispute as to the reasonableness of the amount claimed as attorney’s fees. The judgments are mutual, final, and for costs, having the effect and force of judgments of the circuit court. Respondent’s contention that
While an attorney’s lien asserted and perfected as required by statute, prior to an application to set of mutual judgments obtained in the same court, though in different actions, is superior to the right of a judgment debtor (Hroch v. Aultman & Taylor Co., 3 S. D. 477, 54 N. W. 269), we are inclined to believe that a different rule should be applied to judgments rendered in the same action. For the protection of the lawyer through whose exertions his client’s interests have been preserved and his rights secured, a lien equitable in its nature is allowed upon the interest of such cliant in the judgment obtained; but, when each litigant has obtained a judgment in the same action, there are equities which may be adjusted between the parties without reference to the lien of the attorney for either. In the case before us the plaintiff is insolvent; and, by the order appealed from, the defendant, although a prevailing party is in effect required to pay plaintiff’s attorney. Our conclusion that the judgments rendered in this action should be set off pro tanto one against the other, although plaintiff’s attorney be thereby'deprived of a portion of the amount secured by his lien, in no manner intrenches upon our former decision, and is amply sustained by authority. Weeks, Attys. at Law (2d Ed.) 770; Yorton v. Railroad Co., 62 Wis. 367, 21 N. W. 516, and 23 N. W. 401; Irvine v. Myers, 6 Minn. 562 (Gil. 398.)
Cases inconsistent with the view herein expressed are, indeed, few in number, and were apparently decided without careful consideration. Under the well-established equitable rule, a solicitor’s lien could not be enforced in a manner that would interfere with equities existing between the parties, arising out of the same action or proceeding, but an attorney’s