120 Ark. 389 | Ark. | 1915
This appeal involves the construction of our statutes, relating to attorney’s fees, of April 4,1899, section 4457, Kirby’s Digest, and of Act 293 of the Acts of General Assembly of 1909, it being insisted by appellee that the Act of 1899 is repealed by the later one. Said section 4457 provides for the sale of a judgment, or any part thereof, of a court of record, or the sale of any cause of action or interest therein after .suit has been filed thereon, which shall be evidenced by a written transfer, which when acknowledged and filed and noted as provided, shall be full notice .and1 valid .and binding upon all persons subsequently dealing with reference to said cause of action or judgment.
And also, “In ease the plaintiff .and defendant compromise lany suit for liquidated or unliquidated damages or .any other cause of action after same is filed, where the fees or any part thereof to be paid to the attorney for plaintiff or defendant are contingent, the attorney for the party plaintiff or defendant, receiving a consideration for siaid compromise, shall have a right of action against both plaintiff and defendant for ia reasonable fee, to be fixed by the court or jury trying the case. ’ ’
S.aid act of May 31, 1909, provides: ‘ ‘ The compensation of an attorney or counsellor at law for his services is governed by agreement, express or implied,-which is not restrained by law. Prom the commencement of an action or special proceeding, or the service of an answer containing a counter-claim, the attorney who appears for a party has a lien upon his client’s cause of action, claim or counter-claim, which attaches to a verdict, report, decision, judgment or final order in his client’s favor and the proceeds thereof in whosesoever hands they may come; and- the lien ■ cannot be affected by any settlement between the parties before or after judgment or final order.”
No question has heretofore been raised of the repeal of the first statute which has been construed 'and applied in Fordyce v. McPhetridge, 71 Ark. 327; K. C. Ft. Scott & Memphis Ry. Co. v. Joslin, 74 Ark. 552; Rachels v. Doniphan Lumber Co., 98 Ark. 529; Adamson v. Kay, 100 Ark. 248 and Hall v. Huff, 114 Ark. 206, 169 S. W. 792.
In Fischer-Hansen v. Brooklyn Heights Ry., 173 N. Y. 492, 66 N. E. 395, the court held that the statute gave an attorney a lien upon his client’s claim and cause of action upon the 'commencement of the .action, which extended to the proceeds realized, whether upon settlement or judgment, but that it gave the attorney no right to control the litigation aud prevent a settlement thereof. It was there said:
“A cause of action is not the property of the attorney, but of the client. The attorney owns no part of it, for a lien does not give a right to property, but a charge upon it. As it is merely incidental, and for the purpose of security only, it would not be reasonable to hold that the Legislature intended that it should be the means of blocking .an honest and genuine adjustment of controversies. We think the lien is subject to the right of the .client to settle in good faith, without regard to the wish of the attorney; * * * The right of the parties to thus settle is absolute, ■ and the settlement determines the cause of action .and liquidates the claim. This necessarily involves the reciprocal right of the attorney to follow the proceeds of the settlement, and, if they have been paid over to the client, to insist that Ms share be ascertained and paid to Mm, for the defendant is estopped from saying that with notice of the lien he-parted with the entire fund.”
This statute provides that the compensation of an attorney for his services in governed by agreement, express or implied, wMch is not restrained by law, 'and gives him a lien from the commencement of an action or special proceeding or the filing of an answer and counter-daim upon the cause of action, which attaches to any proceeds realized out of such claim or cause of action, resulting from the litigation either through a settlement, compromise or judgment land of which the cannot be deprived by the parties to the action by 'any settlement they may make.
Under the former statute, the attorney was remitted to his claim for a reasonable fee against both parties to the litigation, in case of a settlement thereof, without Ms consent, the amount of the fee to be determined upon proof of the services performed. Rachels v. Doniphan Lumber Co., supra.
The latter ¡statute is in conflict with the other and provides >a remedy for the protection of ¡an attorney, in the collection of 'his fee or compensation for services, from the beginning of the suit, in accordance with his contract therefor, 'according to the construction placed upon the statute in the state from which it came. Witmark v. Perley, 86 N. Y. S. 756; Oishei v. Metropolitan St. R. Co., 97 N. Y. S. 447; Goldstein v. Nassau Electric Ry. Co., 141 N. Y. S. 805.
It is undisputed (that the claim was settled for $25 and therefore the 'attorneys were only entitled to judgment against the railroad company for 50 per cent, of that sum or $12.50.
The judgment is reduced to that ¡amount and as modified will be affirmed. It is so¡ ordered.