Stoddard v. Lord

59 P. 710 | Or. | 1900

Mr. Justice Moore

delivered the opinion of the court.

Appellants’ counsel contend that, notice of the attorney’s lien having been given in the suit, their client is protected in his payment to Logan of the amount awarded by the decree ; while respondents’ counsel maintain that the suit to set aside the conveyances, and to subject the property to the payment of the judgment, was only auxiliary to the action, and that the notice which was given, that a lien was claimed upon the money in the hands of the adverse party to said action, was a notice to the parties in the suit. The statute gives a lien to an attorney for his compensation, upon money in the hands of the adverse party, from the time of giving notice of the lien to such party : Hill’s Ann. Laws, § 1044. The notice was given prior to the rendition of the decree in this court, and it remains to be seen whether it operated as notice to the parties in the suit.

An attorney’s lien for compensation is a creature of the statute, and the benefits to be derived therefrom are obtained only by a strict compliance with its provisions : Day v. Larsen, 30 Or. 247 (47 Pac. 101). The lien, when it attaches to money in the hands of the adverse party, is, in effect, an equitable assignment pro tanto by the client to his attorney of. so much thereof as may be necessary to satisfy his demand for services performed in securing the fund. In Clark v. Sullivan, 3 N. D. 280 (55 N. W. 733), plaintiff secured a judgment in a justice’s court against one Mead, who appealed therefrom to the district court, and Sullivan became surety on the undertaking for the appeal, agreeing that he would pay any judgment which might be rendered against Mead in said action. The judgment having been affirmed, plaintiff’s attorney entered his notice of lien in the judgment book opposite the entry of judgment. Mead having no property to apply on the judgment, Clark commenced an action against Sullivan on the undertaking, and the latter set up as a counterclaim a judgment rendered against plaintiff in favor of Fairbanks, Morse & Company, which had been assigned to him prior to the commencement of the latter action. Plaintiff’s attorney intervened, claiming that his lien took precedence of the judgment against his client, and it was held that the lien embraced, not only the judgment rendered in the action to recover such money, but also the undertaking for the payment of such judgment. So, too, in Leighton v. Serveson, 8 S. D. 350 (66 N. W. 938), it was held that an attorney, by perfecting his lien, obtained an interest in the judgment and in the cause of action on the appeal bond which was not affected by a subsequent assignment of plaintiff’s interest in the judgment to one of the sureties in the undertaking. By the suit to subject Miller’s property in Lord’s hands to the payment of Morrell’s judgment, Lord became a party to the original judgment, and a notice of lien, having been properly filed therein, attached to the fund in his hand. No error was therefore committed in ordering the clerk to issue execution, and hence it follows that the judgment is affirmed. Affirmed.