106 Wis. 135 | Wis. | 1900
An inspection of the complaint shows that the plaintiffs are seeking to maintain an independent action against defendant to enforce a lien upon a cause of action supposed to exist in favor of their former- client, Harris. Their right, if any they have, to maintain it, is based upon their agreement with their client that they should have one third of the amount recovered or received on a settlement, notice of a lien given defendant, and settlement made without their consent. It is quite clear from the authorities that, in absence of a statute, the plaintiffs would have no lien upon a mere cause of action for unliquidated damages.
‘‘ Any person having or claiming a right of action, sounding in tort or for unliquidated damages on contract, may contract with any attorney to prosecute the same and give such attorney a lien upon such cause of action as security for his fees in the conduct of such litigation; when, such agreement shall be made and notice thereof given to the opposite party or his attorney no settlement or adjustment of such action shall be valid as against the lien so created, provided that such agreement for fees shall be fair and reasonable and that this section shall not be construed as changing the law in respect to champertous contracts.” ^
It will be observed that this section gives the attorney-a lien upon the cause of action, and provides that no settlement- or adjustment of the action shall be valid if notice of such lien shall be given to the opposite party. As between the attorney and the party against whom the cause of action is claimed, the notice creates the lien. The right to acquire the lien is a privilege of which the attorney may avail himself by giving the notice required by the statute. The defendant is a stranger to the contractual relations between the attorney and client, and no right can be acquired against it, under the statute, before the required notice is given. If, before that time, it makes a bona fide settlement of the cause
Plaintiffs argue that, between themselves and Harris, they were the owners of one third of the cause of action, and the defendant, having notice of such agreement, was bound to respect that relation, and, having failed to do so, they may ratify the compromise and bring suit in their own names for their share, or repudiate it and proceed in the original action. In the first place, it is not shown that the defendant had any notice that plaintiffs claimed a one-third interest in the cause of action. The notice served merely states that the claimant has given them a lien upon the cause of action as security for their fees. This was undoubtedly sufficient to prevent a settlement of the cause of action so as to defeat their lien, but was not sufficient to charge the defendant with notice of an assignment of a specific interest in the cause of action. But, even if that were so, the law does not permit the parceling up of an entire claim or cause of action without the debtor’s consent. “ The debtor has a right to pay his debt in solido, and to refuse to be subjected to suit by several claimants; and no notice of an assignment of a part of a debt, no matter how complete in equity, as between assignor and assignee, can destroy this right of the original debtor, without his consent.” Skobis v. Ferge, 102 Wis. 122. This doctrine applies with greater force, if possible, when it is sought to split up an unliquidated claim for damages. The statute in question does not authorize any such division, nor is there anything in the proofs that would warrant the conclusion that any such division had been assented to by defendant. Such rights as the plaintiffs have must be based upon the statute itself and their action taken in conformity to its requirements. The right to a lien being given by the statute, it cannot be enlarged beyond its terms. It is admitted that plaintiffs have done all things necessary to charge defend
In Howard v. Osceola, 22 Wis. 454, the lien of an attorney who had performed services and advanced money in an action on a town order in his hands was protected, a judgment of discontinuance was reversed, and he was allowed to proceed in the action and collect his fees. The policy of the rule so laid down is to allow the attorney to prosecute whatever lien he has in the original action. This is in entire harmony with the statute in question. This statute said to the defendant, Any settlement you may make in disregard of the attorney’s rights shall not be valid; that is to say, you cannot destroy the cause of action upon which an attorney has a lien of'which you have notice. It shall continue to exist notwithstanding such attempted settlement. If the cause of action still exists, the lien still exists. If the cause of action has been compromised, so as to end the action, the lien is gone. Hence the attempt of attorneys to sustain this action leads to the incongruity of treating the cause of action as being in existence so far as their lien is concerned, and settled so far as the amount of their recovery is concerned. It is either settled or it is not settled. If plaintiffs desire to treat it as having been adjusted, that ends the controversy. If it has not been legally compromised, then they may proceed in the original action and enforce their claim. Such was the rule adopted
It being considered that the lien cannot exist independent of the cause of action, it follows, as a necessary corollary, that a complaint which sets up an adjustment and settlement of such cause of action furnishes no foundation upon which a judgment for the amount of such lien can rest. There being a specific provision in the statute which preserves the lien in favor of the attorneys in the action commenced, they may yet prosecute it to final judgment on their
By the Court.— The judgment of the circuit court is re-’ versed, and the cause is remanded with directions to dismiss the complaint.