Reynolds v. Alton, Granite & St. Louis Traction Co.

Jul 16, 1918
Versions:211 Ill. App. 158
1918 Ill. App. LEXIS 370
Mr. Justice Higbee

delivered the opinion of the court.

This is аn appeal from a judgment of the Circuit Court of Madison county, Illinois, dismissing the petition of appellant, C. H. Burton, to enforce against appellee an attorney’s lien, on May 11, 1912.

Appellant, as attorney for Joseph C. Reynolds, filed suit against appellee to recover damages for injuries sustained ‍‌​​​​​​‌‌‌​​​​‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌‌​​​​​‌‌​​‌‌​‌‍by Reynolds while attempting to board one of its cars in the Village of Madison. The firm of Burroughs & Ryder, afterwards Williamson, Burroughs & Ryder, represented appellee in the suit, and on May 29, 1912, filed a plea of not guilty in the case. Appellant had a written contract with Reynolds by which he was to receive 25 per cent, of whatever sum or sums should be obtаined by compromise or suit in the Circuit Court, 5 per cent, additional in the Appellate Cоurt, and 5 per cent, more in the Supreme Court. On May 18, 1912, appellant gave notice оf his employment and claim of lien by giving the same to Burroughs & Ryder, who acknowledged receipt of same as attorneys for appellee. Trial was had at the January term, 1913, and judgment rendered in favor of Reynolds for $6,000. March 8, 1913, an assignment to appellant ‍‌​​​​​​‌‌‌​​​​‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌‌​​​​​‌‌​​‌‌​‌‍of 35 per cent, of this judgment was filed in the office of the clerk of the Circuit Court of Madison county. On appeal to this court that judgment was reversed and the cause remanded. [183 Ill. App. 538.] On the seсond trial of the case a judgment was rendered June 17, 1914, against appellee for $8,000, which was affirmed by this court [194 Ill. App. 87] but was afterwards reversed by the Supreme ‍‌​​​​​​‌‌‌​​​​‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌‌​​​​​‌‌​​‌‌​‌‍Court and the cause remаnded. [273 Ill. 207.]

It appears that following the second judgment another assignment of 35 per cent, of the judgment by Reynolds to appellee was filed in the office of the circiiit clеrk and that the firm of Williamson, Burroughs & Byder, as attorneys for appellee, acknowledged receipt of the notice of assignment. While a petition for rehearing was pending in the Supreme Court the case was settled, on May 4, 1916, for $2,000 through one C. H. Bartels, claim agеnt for appellee, without the knowledge or consent of the appellant. Uрon learning of this settlement appellant made demand on the Traction Company for 35 per cent, of the $2,000, which the company refused to pay, and appellаnt filed this petition to enforce his attorney’s lien for $700. After hearing the evidence the court dismissed the petition and entered judgment against appellant for costs. The reсord shows that appellant served ‍‌​​​​​​‌‌‌​​​​‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌‌​​​​​‌‌​​‌‌​‌‍notice of his employment and claim for lien uрon attorneys for appellee, and the sole question for us to consider upon this record is whether such service complies with the requirements of the Attorney’s Lien Act. Thе statute under which this cause arises, after providing that attorneys shall have a lien upon all claims, demands and causes of action placed in their hands for suit or collеction by their clients, contains the following: “Provided, however, such attorneys shall serve notice in writing upon the party against whom their clients may have such suits, claims or causes оf action, claiming such lien, ’ ’ etc. Hurd’s Rev. St. ch. 82, sec. 55 (J. & A. 611).

In the case of Haj v. American Bottle Co., 261 Ill. 362, which was a proceeding to enfоrce an attorney’s lien, it was proved that notice was given to the party against whom judgment had been obtained by mail. The Supreme Court, in reversing the judgment of the trial court allowing the petition, said: “The statute creating the attorney’s lien creates a liability unknown before the passage of the act, and where that is the case the statute must be strictly followed. It requires notice, differing in that respect from the statute in New York and perhaps other States, and as it specifies no other method of service, personаl service, under all the authorities, is required. The appellee not having compliеd with the statute creating the lien is not entitled to one.”

This court in Jackson v. Toledo, St. L. & W. R. Co., 186 Ill. App. 531, following Haj v. American Bottle Co., supra, held that there must be personal service of the notice of lien, and that such personal service should follow the law as to the service of process wherе the party to be served is a corporation, that therefore service of thе notice, of lien upon the attorney ‍‌​​​​​​‌‌‌​​​​‌​‌​‌​​‌‌​‌​‌‌​‌​‌​‌‌​​​​​‌‌​​‌‌​‌‍for the party against whom the lien is sought to be enforced is not a compliance with the statute. It follows from these decisions that thе notice in this case was not in compliance with the requirements of the statute and therefore the lien cannot be maintained. The judgment will be affirmed.

Affirmed.