25 Ind. App. 19 | Ind. Ct. App. | 1900
Lead Opinion
—Appellants are partners, engaged in the practice of law. They sued appellee to recover for services
The above averments are taken from the first paragraph of complaint. The second paragraph is like the first, with these additions: That when said assignment was made it was agreed and understood between Eli and appellee that
The issue was joined by an answer in denial, trial by the court, and at request of appellee the court made a special finding of facts, and stated conclusions of law thereon. The conclusions of law were favorable to appellee, to which conclusions appellants excepted. The appellants’ motion for a new trial was overruled.
The only assignment of error that presents any question for review is the second, which challenges the conclusions of law. The correctness of the conclusions of law depends upon the facts found. By the facts found it appears that appellants were employed by Eli W. Middleton to prosecute an action for damages against John O. Middleton, upon an agreement that they were to receive for their services a sum equal to ten per cent, of the amount recovered; that they did recover a judgment for $10,000; that, following the rendition of said judgment, appellants filed a lien thereon upon the margin of the record for $1,000; that said judgment was rendered November 12, 1891; that on the 11th day of September, 1895, in the absence of appellants, Eli W. Middleton assigned said judgment to appellee, said assignment being made upon the margin of the record, where it was entered; that the said Eli assigned said judgment to appellee, in order that the same might be charged against the said John O. Middleton in the distribution of her estate; that appellee was the mother of both Eli and John Middleton and of two daughters; that on June 17, 1897, without the
The record shows that the lien of appellants upon the judgment obtained by them for their client was taken in pursuance to-the provisions of the statute. §7238 Burns 1894, §5276 Horner 1897. No question is raised as to its validity. The judgment was rendered November 12, 1891, and on September 11, 1895, the judgment plaintiff assigned the judgment to appellee. The assignment was in conformity to the provisions of §612 Burns 1894, §603 Horner 1897, providing for the assignment of judgments. July 17, 1897, appellee, as the assignee of the judgment plaintiff, released the judgment of record so far as her. interest therein was concerned. This assignment and release of the judgment were without the knowledge or consent of the appellants. The court found as a fact that appellee did not receive any money upon the judgment, nor did she receive anything for entering the release. We have no doubt but what an assignee of a judgment, where such assignment is shown of record, may enter satisfaction of it, and the question which is of controlling influence here is, under the facts found,—does such release destroy the lien of appellants ? If it does, they might properly proceed against appellee; but if it does not, then they have no right of action
In McCabe v. Britton, 79 Ind. 224, it was held that if an attorney had acquired a valid lien upon the judgment procured by his services, his right .to collect the 'amount by execution upon the judgment was not affected by the satisfaction of the judgment. An attorney’s lien properly acquired upon a judgment cannot be defeated by a discharge of the judgment given by his client to the judgment debtor. Foster v. Danforth, 59 Fed. 750; Gammon v. Chandler, 30 Me. 152; McKenzie v. Wardwell, 61 Me. 136; Stratton v. Hussey, 62 Me. 286; Rooney v. Second Avenue R. Co., 18 N. Y. 368; Woolf v. Jacobs, 45 N. Y. Supp. 583.
If the appellee had received the amount of the judgment, then appellants, under the authorities, might recover from her the amount of their lien, as for money had and received. Heartt v. Chipman, 2 Aik. (Vt.) 162. Or, as was held in Arkansas, they might enforce their lien against her as assignee of the judgment, if she had recéived the avails and discharged the judgment. Sexton v. Pike, 13 Ark. 193. But here the court finds that appellee did not receive any money upon the judgment. The assignee of a judgment takes the equitable title to it, subject to a lien in favor of the attorney through whose services it was secured. Yates
As appears in the special findings the appellee released all her right, title, and interest in the judgment; but this release can not operate to affect appellants’ right to their lien on the judgment. Bickford v. Ellis, 50 Me. 121. The law which recognizes an attorney’s right to a lien upon a judgment, to secure his fees for services rendered in its procurement, rests upon the equitable rule that the party who has reaped the benefit of his services should not be allowed to run away with the fruits of such services, without satisfying the legal demands of his attorney, by whose industry, sagacity, and learning, and in many cases at whose expense those fruits are obtained. 13 Ency. Pl. & Pr. 142. Per Kenyon, C. J., in Read v. Dupper, 6 T. R. 361; In re Wilson, 12 Fed. 235.
The judgment plaintiff could not by any act of his affect appellant’s lien upon the judgment, and it follows that the act of his assignee in releasing her interest in the judgment could not affect their rights under the lien. Whether they can proceed to have execution issue, in an effort to enforce their lien, while the judgment stands upon the record, released, so far as the appellee’s interest is concerned, is another question. It has been held that a motion to prosecute and vacate a satisfaction of a judgment should be made in the attorney’s name, but that the suit should proceed in the client’s name. Murray v. Jibson, 22 Hun 386; Reynolds v. Reynolds, 10 Neb. 574, 7 N. W. 322.
Under our statute, and the authorities, a notice of an attorney’s lien upon the judgment duly acquired is notice to all the world. Such notice is therefore perfect against
Our conclusion is that by the assignment of the judgment by Eli W. Middleton to the appellee and by her subsequently releasing all her interest therein by an indorsement upon the margin of the judgment record, appellants’ lien was neither destroyed nor affected, and that by reason thereof, under the facts found, appellee did not become personally liable to appellants.
The first specification of the assignment of errors is that the court erred in its special findings thirteen, fifteen, and sixteen, and also in overruling appellants’ motion to strike out said findings. This is not a proper assignment of error, and does not present any question for decision. Judgment affirmed.
Rehearing
On Petition foe Eeheaeing.
—In their brief on petition for a rehearing, counsel complain bitterly of the statement in the original opinion that the only assignment of error that presents any question for review is the second, which challenges the conclusions of law. Upon a reexamination of the record we feel fully justified in the statement thus made, in the abstract, but add that all questions properly presented by the record are embraced in the second specification of the assignment of error. The first specification of the assignment of errors is that the court erred in overruling appellant’s motion to strike out special findings thirteen, fifteen, and sixteen. This was a written motion, and it was based upon the ground that the said findings were “inconsistent with the other findings returned”. We insist that this motion, the overruling of which is assigned as error, does not present any question for review, even if the motion and the ruling thereon were brought into the record by a bill of exceptions, and this has
The record shows that the special findings were made January 23, 1899. On the same day appellants’ motion to strike out findings thirteen, fifteen, and sixteen, was filed and overruled, and they were given sixty days in which to file their bill of exceptions. On the same day the court stated its conclusions of law, and appellants excepted thereto. Immediately following this, at the' same sitting of the court, appellants moved for a new trial, which motion was overruled, and sixty days were given in which to file their bill of exceptions. On the same day appellants filed-their general bill of exceptions, and a record entry thereof was made, which is shown by the transcript. This general bill of exceptions is not, however, copied into the record. The original bill of exceptions, embracing the motion to strike out findings thirteen, fifteen, and sixteen, and the ruling thereon, shows that it was presented to and signed by tho trial judge January 27, 1899, and is attached to the transcript. It appears, therefore, that this special bill of exceptions was approved and signed by the trial judge within the time given, but there is nothing in the record by way of record entry or certificate of the clerk to show that such bill was ever filed, either in open court or in the clerk’s office. This is essential to bring the bill into the record. Upon this proposition there are numerous authorities, but we content ourselves by referring to Denman v. Warfield, 20 Ind. App. 664, and authorities there cited, and Lowry v. Downey, 150 Ind. 364, and authorities there cited. Pretense may be made that the record entry made on January 23rd, showing the filing of the “general” bill of exceptions referred to, was in fact the special bill, embracing the
In Sharp v. Malia, supra, the court said: “We are not advised of any rule of practice which authorizes a motion to strike out parts of a special finding of facts. Should the court fail to find all the facts proved, or find the facts contrary to the evidence, the remedy is by motion for a new trial.”
As we have seen, appellants moved for a new trial, and in their brief on petition for rehearing it is earnestly urged that we should have considered the questions presented by it under the third specification of the assignment of error, whereby the action of the trial court in overruling the motion is challenged. A brief mention of the reasons for a new trial will serve to show that every question it is thus sought to raise is properly presented, and reviewable under the exceptions to the conclusions of law, which are assigned as error.
The reasons for a new trial are: (1) Error in the thirteenth, fifteenth, and sixteenth special findings, and each of them, in that they are inconsistent with the other findings; (2) error in the conclusions of law, and that the conclusions of law are not sustained by the findings and are contrary to
The second, fourth, and fifth reasons for a new trial do not present any question that is not fully and fairly covered and embraced by the second specification of the assignment of error, which brings in review the conclusions of law. That certain of the special findings are inconsistent with other findings is not a reason for a new trial. The only manner in which a special finding of facts and conclusions of law can be brought in review is by excepting to the conclusions of law. City of Logansport v. Wright, 25 Ind. 512; Peden v. King, 30 Ind. 181; Luirance v. Luriance, 32 Ind. 198; Board, etc., v. Newman, 35 Ind. 10; Cruzan v. Smith, 41 Ind. 288; Rose v. Duncan, 43 Ind. 512.
The errors assigned are: (1) That the court erred in overruling the motion to strike out special findings thirteen, fifteen, and sixteen; (2) that the court erred in its conclusions of law; (3) that the court erred in overruling the motion for a new trial; (4) that the court erred in rendering-judgment against appellants.
Erom this assignment of error, and the authorities to which we have referred, it is clear that’ the only error assigned that presents any question for review is that the court erred in its conclusions of law, and it follows that we
The court found every essential fact against appellants, and there can be no question but what on the facts found the conclusions of law were correctly stated. No other conclusion could have been reached.
Petition for a rehearing overruled.