40 Ind. App. 393 | Ind. Ct. App. | 1907
Ada H. Rank, by William P. Miedreich, her attorney, sued the Illinois Life Insurance Company. Such proceedings were had as resulted in the filing of an amended complaint, to which the defendant on June 6, 1904, filed a demurrer for want of facts. No ruling was made thereon at
In New York, and other states, statutes have been enacted under which the attorney may acquire a lien upon his client’s cause of action, but there is no such statute in this State, and it has been held that ordinarily an attorney acquires no lien for fees until after judgment. Hanna v. Island Coal Co. (1892), 5 Ind. App. 163, 51 Am. St. 246, 262.
The effect of the authorities is accurately summarized in a monographic note to Cameron v. Boeger (1902), 93 Am. St. 165, 173, and cases cited, as follows:
“While honest settlements between the parties to a litigation, made without any intention of taking advantage of the attorneys are commendable and to be encouraged, collusive and fraudulent settlements made for the purpose of defrauding the attorneys are, of course, reprehensible. If such are attempted, the court may interfere to protect the attorney. Its power to do so is inherent, and is founded on its right to protect its own officers against collusion and fraud practiced by the parties to the cause.”
The procedure has been designated as ‘‘clumsy.” “It was a device of the courts, not of the legislature, and sprang from the necessity of providing some remedy against fraudulent settlements.” Fischer-Hansen v. Brooklyn Heights R. Co., supra, at page 501. The necessity is no less at this time in Indiana than it was in England years ago, when the procedure was first followed, and it furnishes a remedy by. which' the courts may compel the litigants to treat the lawyer with some measure of the honesty which he is bound to exercise in his dealings with them. Hanna v. Island Coal Co., supra, was an independent action brought by an attorney against the opposite party in the litigation, theretofore disposed of by settlement. The case might have been placed upon the ground that the remecly of the attorney was by motion. The opinion in said case shows that the principles heretofore stated were not considered, and were indeed not within the issue. The language used by the learned writer of that opinion is therefore limited to the case then before the court. The procedure adopted by the appellant in the ease at bar was correct, and, if the facts before the court were sufficient to make a prima facie ease of fraud against him, the judgment appealed from will have to be reversed. The affidavit was presented to the court as one step in a pending cause, the details of which that court already knew.
The judgment is reversed, and the cause remanded for further proceedings consistent herewith.