123 Ark. 473 | Ark. | 1916
Lead Opinion
(after stating the facts). Counsel for the plaintiff claimed a lien under Act 293 of the Acts of the General Assembly of 1909. Section .1 of the, act reads as follows: “The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied, which is not restrained by law. Prom the commencement of an action or special proceeding, or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counter-claim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whosoever hands they may come; and the lien can not be affected 'by any settlement between the parties before or after judgment or final order.” Acts of 1909, p.'892.
It is insisted by counsel for the defendants that the aet of 1909 just referred to, was passed for the purpose of protecting attorneys,who recovered judgments in damage suits, and does not include decrees such, as the one rendered in the chancery court in the case of Reeves v. Moore, referred to in the statement of facts. We can not agree with the contention of counsel for the defendants. If the statute in question meant to limit the right of an attorney of record to enforce his lien only in an action for. the recovery of damages, it would have read “cause of action for tort” or “cause of action for a personal tort” as the Legislature might intend to limit it. The statute in general terms gives the attorney a lien upon his client’s cause of action.
In the case of Smoot v. Shy, 139 S. W. (Mo.) 239, the facts were, there was an order of sale in a suit for partition of real estate and the property was bid off by one Shy for a stipulated price. On the report of sale coming in, all parties to the action objected to the confirmation of the sale on various grounds and moved to set it aside. A firm of attorneys was employed by the parties to the partition suit who agreed to pay them a certain sum out of the proceeds of re-sale of the amount the land brought in excess of the original price. The attorneys procured the sale to be set aside and the land was sold at an increased price, Mr. Shy again being the purchaser. The re-sale was approved by the court and the proceeds ordered paid out to the parties according to their interests. Shy purchased the interests of certain of the parties to the partition suit with full knowledge of the terms and conditions of the employment of the attorneys. The St. Louis Court of Appeals held that the attorneys were entitled to a lien under a statute of precisely the same terms as the section of our statute above quoted.
In his suit against Moore, Reeves alleged that the conveyance from John P. Moore to his son Frierson Moore was a voluntary one and was made to defeat his rights under the timber deed. He also alleged that Frier-son Moore had notice of the execution of the timber deed to him and he asked that John P. Moore be required to execute a proper deed to him for the timber; or that other appropriate relief be granted.
Frierson Moore in his answer averred that he was a bona fide purchaser for value and denied that he had any knowledge of the conveyance of the timber to Reeves at the time he purchased the land from his father. The deed from his father to him gave Frierson Moore the right to take possession of the land and after doing so, he denied the right of Reeves to enter the land and remove the timber.
The decree will therefore be affirmed.
Dissenting Opinion
(Dissenting). The Act of 1900 does not enlarge the rights of an attorney so far as concerns the subject-matter of the cause of action or the recovery thereon, but merely protects him by giving Mm a lien on the canse of action of his client as well as on the recovery in which the cause of action is merged. The statute does not even give the attorney the right to control the .cause of action, but merely fixes a lien oh the • fruits of the litigation. St. Louis, I. M. & S. Ry. Co. v. Blaylock, 117 Ark. 504; St. Louis, I. M. & S. Ry. Co. v. Kirtley, 120 Ark. 389, 179 S. W. 648.
In the case last cited, this court said that the lien “attaches to any .proceeds realized out of such claim or cause of. action resulting from the litigation, either through a settlement, compromise, or judgment, and of which he (the attorney) can not be deprived by the parties to the action by any settlement they may make.”
The statute under consideration shows very clearly on its face that it was only intended to fix a lien on the fruits of the litigation, that is to say on the subject-mat- " ter of the litigation which is recovered or which may be recovered in the action, and that it was not intended to give a lien merely for the preservation or protection of the client’s interest in the property involved. An attorney who merely defends a right of his client has no lien on the subject-matter of the litigation because it constitutes no cause of action and nothing is recovered. In this respect the statute is the same as the pre-existing statutes on the subject, and they have been construed by tMs court to confer no rights unless some Mnd of property is recovered.
In Hershy v. Du Val, 47 Ark. 86, the court held that an attorney had no lien on his client’s land for services rendered in an action to remove a cloud from the title. In construing the statute, Mr. Justice Smith, .speaking for the court, said: “The lien on the .specific property recovered, * * * is limited to cases where there has ■been an actual recovery, and can not be extended to professional services "which merely protect an existing title or right to property. * * * It (the statute) does not give the attorney a lien on the estate he has rescued from an unjust claim, and saved for his client, but only on the property he has actually recovered.
Reeves did not sue to recover the timber, but sued only to remove a cloud from his title and to protect the interest which he already possessed. It was merely a suit to remove the cloud cast on his title by the deed executed by Moore, his grantor, to the’ latter’s son, and was not in any sense a suit to recover the timber, for that had passed to Reeves under the conveyance to him by Moore, and all the relief that he needed was to remove the cloud from the title. There is nothing in the record to show that Frierson Moore was in possession of the timber, but he was merely asserting a claim to it under his father’s deed, which constituted a cloud upon Reeves ’ title.
