188 P. 135 | Ariz. | 1920
Aurelia B. Sparks, on March 25, 1910, recovered a judgment in the superior court of Los Angeles county, California, against John M. Sparks for the sum of $5,000 and costs, and on the twenty-first day of January, 1911, Mrs. Sparks entered into a contract in writing with H. C. Millsap, an attorney at law of Los Angeles, California, by the terms of which contract Millsap agreed to institute such proceeding or proceedings, and to prosecute the
The right of Millsap to have the satisfaction of the judgment set aside and vacated depended upon the good faith of the parties in compromising the litigation. The legal effect of the contract between Mill-sap and Mrs. Sparks was to create a lien upon thé judgment to the extent of twenty-five per cent of the amount thereof. 2 Pomeroy’s Equity Jurisprudence, par. 1235. It was not an equitable assignment of the judgment, or of any interest therein. A lien is a “charge upon” property, while an assignment creates an “interest in” property. In the one case the property can be conveyed subject to the lien, or even free of the lien. In the other case, the portion assigned can be conveyed only by the assignee who is a co-owner with the assignor. Nichols v. Orr et al., 63 Colo. 333, 2 A. L. R. 449, 166 Pac. 561. Barnes v. Shattuck, 13 Ariz. 339, 114 Pac. 952, differs from the present case. There the interveners acquired an “interest in” the fund itself by virtue of the contract. In Fillmore v. Wells, 10 Colo. 228, 3 Am. St. Rep. 567, 15 Pac. 343, the court said:
“The attorney’s lien, whether under the statute or at common law, is equitable in its nature. ... It is not property in the thing which gives a right of action at law. It is a charge upon the thing which is protected in equity.”
It is urged that the settlement in this case was not honest, and was accomplished for the purpose of defeating Millsap’s lien. It is undisputed that Mrs. Sparks went to the office of one of the attorneys of John M. Sparks and first offered to settle the judgment for $1,000. The attorney immediately communicated with Gibson by phone, and informed him that Mrs. Sparks was in the office and wanted to settle the case, but that he did not wish to settle without letting Gibson know about it. Gibson informed the attorney that he was not working for Mrs. Sparks, that he had not been employed by her, and that she was not obligated to him in any way. Nothing was said about Millsap or the Millsap contract. Sparks had some conversation with Kings-bury, in which it seems that he expressed an intention not to beat Kingsbury or his associates out of any fee in the case. While this testimony would indicate that Sparks knew that Kingsbury and his
We find no evidence in the record that tends to accuse either Sparks or his attorney of any fraud in the compromise, and Millsap must look to Mrs. Sparks for compensation for his services. For the foregoing reasons the order of the lower court refusing to vacate and set aside the satisfaction of the judgment must be, and the same is hereby, affirmed. •
CUNNINGHAM, C. J., and EOSS, J., concur.