94 Tenn. 277 | Tenn. | 1895
In this cause, on a former clay of the present term, a moneyed decree was rendered in favor of Mitchell against complainant, J. S. Roberts. On a still earlier day of the term, in another and independent suit, a decree was pronounced in favor of Roberts against Mitchell, and a motion is now made
While the attorney’s lien upon the judgment recovered for his client, as the result of his professional labor, has been recognized and enforced in this State in a variety of cases, yet, so far as we have been able to discover, the exact questions here involved have not been determined. Elsewhere what is the proper rule in a case like the present has been the subject of much difference of opinion, and the result is, the practice of the Courts of England, and of many of the States of this Union, has been very inharmonious. ' In the English Courts the claim of the attorney to have his fees and disbursements in a suit paid out of the judgment he obtained has been long recognized. In the Courts of Common Pleas, however, it was held- that this claim, or lien, was subordinate to the defendant’s right of offset. This same rule obtained in the English Chancery Courts, while the Court of King’s Bench held that the attorney’s lien was superior to the defendant’s right to such set-off. Hull v. Ody, 2 B. & P., 28; Ensden v. Darley, 4 B. & P., 22; Simpson v. Lamb, 50 Eng. L. & E., 59; Taylor v. Popham, 15 Vesey, 541; Rhodes, ex parte, 15 Ves., 79.
Afterward, . however, in the Courts of Common Pleas, the practice was changed, and the right of
As before stated, in the American Courts the same difference of opinion and practice has obtained. In the Supreme Court of New York, at an early day, it was held that this lien would prevent one judgment from being set off against another in such a manner as to deprive the attorney of his costs. Cole v. Grant, 2 Caines, 105; Dury v. Boyer, 3 John., 247.
In the States of Maine, New Hampshire, Nebraska, Florida, and Kentucky, the right of set-off of the defendant is held to be subservient to the attorney’s lien for fees or costs and disbursements, as may be. Stratton v. Hussey, 62 Maine, 288; Currin v. Railroad, 37 N. H., 223; Johnson v. Ballard, 44 Ind., 270; Boyer v. Clark, 3 Neb., 161; Carter v. Davis 8 Fla., 183.
On the contrary, the Courts of West Virginia, Vermont, Iowa, and Alabama maintain the right of set-off as superior to the attorney’s lien. Renick v. Luvington, 16 W. Va., 378; McDonald v. Smith, 57 Vt., 502; Tiffany v. Stewart, 60 Iowa, 207; Mosely v. Norman, 74 Ala., 422.
We think the better and more equitable rule is the one that subordinates the right of set-off of independent judgments rendered in different suits, growing out of different causes of action, to the attor-
Nor is § 3635 of the Code to be construed* so as to militate against this view. By that section it is provided that “judgments of the same Court may •be set off against each other on motion.” But we hold that this section must be read as if it con
In the case at bar, an order will be entered allowing the set-off, but subject to the lien of the solicitor, which will be declared by a proper order.