102 Mo. App. 173 | Mo. Ct. App. | 1903
(after stating the facts as above).— 1. In 1901, the Legislature passed the following act:
“Section 1. The compensation of an attorney or counselor for his service is governed by agreement, express or implied, which is not restrained by law. Prom the commencement of an action or the services of an answer containing' a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client’s favor, and the proceeds thereof in whosoever hands they may come; and can not be effected [affected] by any settlement between the parties before or after judgment.
“Sec. 2. In all suits in equity and in all actions or proposed actions at law, whether arising ex contractu or ex delicto, it shall be lawful for an attorney at law either before suit or action is brought, or after suit or action is brought, to contract with his client for legal services rendered or to be rendered him for a certain portion or percentage of the proceeds of any settlement of his client’s claim or cause of action, either before the institution of suit or action, or at any stage after the institution of suit or action, and upon notice in writing by the attorney who has made such agreement with his client, served upon the defendant or defendants, or proposed defendant or defendants, that he has such an agreement with his client, stating therein the interest he has in such claim or cause of action, then said agreement shall operate from the date of the service[s] of said notice as a lien upon the claim or cause of action, and upon the proceeds of any settlement thereof for such attorney’s portion or percentage thereof, which the client may have against the defendant or defendants, or proposed defendant or defendants, and can not be affected by any settlement between the parties either be*183 fore suit or action is brought, or before or after judgment therein and any defendant or defendants, or proposed defendant or defendants, who shall, after notice served as herein provided, in any manner, settle any claim, suit, cause of action, or action at law with such attorney’s client, before or after litigation instituted thereon, without first procuring the written consent of such attorney, shall be liable to such attorney for such attorney’s lien as aforesaid upon the proceeds of such settlement, as per the contract existing as herein above provided between such attorney and his client. ’ ’
Tinder the provision of the first section of the act, the lien of an attorney attaches when the suit is commenced or service of an answer containing a counterclaim is made. If the attorney and client enter into a contract that the former shall receive as compensation for his services, a percentage of the amount recovered or realized, and the attorney serves a written notice on the defendant or proposed defendant, of the agreement between himself and client, the lien attaches to the matter or cause of action from the date of the service of such notice, although no suit has been commenced, and if the claim is settled by the client with the defendant or proposed defendant, in disregard of the attorney’s rights, after the defendant has been served with such notice, he will be individually liable to the attorney, as per his contract with his client. The respondent undertook to attach his lien under the provisions of the second section of the act by giving notice of his agreement with his client. The notice, we think, - is sufficient in form and substance, but its service on Judge Krum, the attorney of defendants, was not a compliance with the statute, which expressly requires that the notice shall be served on the defendant or proposed defendant. Sappington v. Jeffries, 15 Mo. 628; Conway v. Campbell, 38 Mo. App. 472. For failing to give the notice required by the second section of the act, Young’s lien did not attach until the suit was commenced, when it
The New York statute, of which the first section of the Act of 1901 (so far as it goes) is almost a literal copy, provides that, ‘‘The court, upon the petition of the client or attorney may determine and enforce the lien. ’ ’ This clause gives the courts of New York jurisdiction, on the intervention of either the client or attorney after final judgment, to determine and enforce the lien. No such power is directly conferred by the Act of 1901 on the courts of this State. Before the Act of 1901 attorneys had no lien for their services in this State. Frissell v. Haile, 18 Mo. 18; Gulick v. Huntley, 144 Mo. l. c. 252; Roberts v. Nelson, 22 App. 28; Alexander v. Grand Ave. Ry Co., 54 Mo. App. l. c. 73. The act is, therefore, not an amendment of the common law, in respect to the same subject-matter, but is the creation of a new right that existed elsewhere at common law.
For some reason best known to itself, the Legisture omitted to prescribe any remedy for the enforcement of the lien when it attaches under section 1, of the act. That the lien can not be enforced in equity against the judgment itself, we think is apparent from the nature of the thing to which the' lien attaches. The chancellor might find that there was a. lien and decree its foreclosure, but there would be no res, no substance, upon which he could put his hand to enforce Ms decree. In such circumstances, the court will not let a new right perish for want of a remedy, but will look to the common law for an adequate remedy for the enforcement of the right. At common law in England an attorney had a lien upon the fund or judgment, which he recovered, for payment as attorney in recovering the fund
In respect to enforcing this lien, Lord Mansfield, in Welch v. Hale (1 Doug. 238), said: “An attorney has a lien on the money recovered by his client for his bill of costs. If the money come to his hands he may retain it to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court they will prevent its being paid over till his demand is satisfied. I am inclined to go still further, and to hold that, if the attorney gave the notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned after notice. But I think we can not go beyond these limits. ’ ’
In Goodrich v. MacDonald, 112 N. Y. l. c. 163-4 Earl, J., speaking in respect to the common law lien of an attorney, said: “It was a device invented by the courts for the protection of attorneys against, the knavery of their clients, by disabling clients from receiving the fruits of recoveries without paying for the valuable services by which the recoveries were obtained. The lien was never enforced like other liens. If the fund was in the possession or under the control of the court, it would not allow the client to obtain it, until he had paid his attorney, and in administering the fund it would see that the attorney was protected. If the thing recovered was in a judgment, and notice of the attorney’s claim had been given, the court would not allow the judgment to be paid to the prejudice of the attorney. If paid after such notice in disregard of his rights, the court would, upon motion, set aside a discharge of the judgment and allow the attorney to enforce the judgment by its process so far as was needful for his protection. But after a very careful search we have been unable to find any case where an attorney has been per
In Mosely & Eley v. Norman, 74 Ala. 422, it was said, in respect to the lien of an attorney upon a judgment obtained by him for his client, that he was regarded as an equitable assignee of the judgment to the extent of his lien.
In Newbert v. Cunningham, 50 Me. l. c. 234, it is said: “The attorney, being regarded as an equitable assignee of the judgment, has a right to the same remedial processes as his client to obtain satisfaction to the extent of his lien.” Practically the same ruling was made in Commercial Telegram Co. v. Smith, 57 Hun 176.
In Terney v. Wilson, 45 N. J. 282; Williams v. Ingersol, 89 N. Y. 508, and in Weeks v. Circuit Judges, 73 Mich. 256, it was held that an agreement between an attorney and a client, that the former should have a lien for his service upon a judgment to be recovered, constituted a valid equitable assignment pro tanto.
In Filmore v. Wells, 10 Colo. l. c. 233, the court said: “To declare him [the attorney] entitled to a lien upon the judgment, without permitting him, through such lien, to reach and control the subject-matter of the recovery, would be bestowing upon him the shadow, and withholding the substance.”
In Patrick v. Leach, 17 Fed. 476, it was held by the United States Circuit Court, district of Nebraska, that, “Where an attorney at law has obtained a judgment for his client, on which he is entitled by law to a lien for his fees, and has perfected his lien in accordance with the provision of the law, he may enforce it, notwithstanding a compromise and settlement made by his client with the other party, although he has not made himself a party to the record.”
From these authorities we conclude that the remedy afforded by the common law to the attorney for the enforcement of his lien on a judgment, which he has obtained for his client, is, if the judgment is paid in disregard of his rights, to move the court to .set aside the satisfaction pro tombo and to award execution to the extent of his lien, as was done in this case; that where the judgment or its proceeds are yet under the control of the court, it is the duty of the court, on motion of the attorney, to control the judgment or its proceeds until he has paid his fee. The learned circuit judge adopted this remedy and we approve his ruling.
Since writing the foregoing opinion our attention has been called to the fact that the contract upon which defendant bases his lien, and also the judgment he obtained for his client, were prior in date to the taking effect of the Act of 1901, supra. The act has no retrospective operation (sec. 15, art. 2, Bill of Rights), hence the plaintiff has no lien, legal or equitable, for the contract value of his services. Frissel v. Haile, Gulick v. Huntley, Roberts v. Nelson, Alexander v. Grand Avenue Railway Co., supra. His only remedy is on the contract against his client.
The judgment will have to be reversed and the execution quashed. It is so ordered.
