Jackson v. Clopton , 66 Ala. 29 ( 1880 )

SOMERYILLE, J.

It is settled in this State, that an attorney-at-law has a lien on a judgment, for any reasonable fees due to him by his client, for professional services rendered in its recovery. It is limited, however, to services rendered in the particular action, or proceeding, in which the judgment was obtained.—Warfield v. Campbell, 38 Ala. 527; Ex parte Lehman, Durr & Co., 59 Ala. 631; Adams v. Fox, 40 Barb. (N. Y.) 442; Wells v. Hatch, 43 N. H. 246 ; Mansfield v. Dorland, 2 Cal. 507. And he may not only deduct his reasonable fees from moneys in his hands which he has recovered for his client, but is protected in the payment of like reasonable fees to other attorneys or counsel, who were employed in the same suit by the” client. The reason is, that they have jointly a lien on the fund collected under the judgment, which embraces a right to have their fees satisfied out of it, where no intervening equities accrue in favor of third parties to defeat suck lien.—Balsbaugh v. Frazer, 19 Penn. St. 95; Christy v. Douglass, Wright (Ohio), 485.

To support his claim for professional services, an attorney-at-law may either prove his retainer, or original employment, or he may show the performance of the services within the knowledge of the client, and the recognition of the relation^ ship by the client during the progress of the cause.—Hotchkiss v. Le Roy, 9 John. N. Y. 142; Burghart v. Gardner, 3 Barb. N. Y. 64, Fore v. Chandler, 24 Tex. 146.

In this .case, the defendant had a lien on the fund in his hands, collected under the judgment recovered by him for plaintiff, against Durr and others, for such reasonable fees as were due for professional services rendered by himself, or his law-firm, in obtaining such judgment. And if the firm of Arrington & Graham were also retained by Jackson, — a controverted question of fact, which was properly submitted to the jury,. — they were entitled to a like lien for their reasonable fees. If the defendant, with a knowledge of this lien, had paid over the money to Jackson, there are circumstances under which he would have been liable for any loss occasioned thereby to his associate counsel.

An attorney-at-law is held to the exercise of reasonable diligence and skill, and is liable for ordinary neglect in the discharge of his professional services ; and the skill required is to be measured with reference to the particular duty which he undertakes to perform:—Goodman v. Walker, 30 Ala. 482; O’Barr v. Alexander, 37 Ga. 195; Wilson v. Russ, 20 Me. 421; Parker v. Ralls, 28 Eng. L. & Eq. 424.

" There was no error in excluding the evidence offered by plaintiff, of the continuance of his original suit against Durr and others,' occasioned by the necessity of an amendment to the complaint. It does not appear that this was attributable to any negligence on the part of the attorneys, — to say nothing of the remote and speculative nature of a claim for damages based on such a contingency.

The court properly excluded the testimony of Jackson, as to the conversation between him and Graham, who was deceased at the time of the trial. The estate of Graham was interested in the result of the trial, because liable to refund to Clopton in the event of a recovery from the latter by Jackson. Under the provisions of section 3058 of the Code of 1876, which, it is noticeable, has been so amended as greatly to enlarge the scope of the former exception, it was not permissible to testify as to any transaction with or statement by Graham. The reason of this rule of exclusion, imposed by the exception, has been declared to be, that there .should be no admissibility where there is no mutuality.—Kumpe v. Coons, 63 Ala. 448; 1 Whart. 466. And persons beneficially interested, though not strictly parties to a suit, have been held to come within the reason and operation of the statute.—Drew v. Simmons, 58 Ala. 463.

The bill of exceptions recites, that the defendant offered to prove the value of the services rendered by Arrington & Graham, in the prosecution of one Murphy; they have been employed by Jackson, and said prosecution being connected in some way or another with the transactions between plaintiff and Durr. To this the plaintiff objected, and the court overruled the objection. Conceding that this evidence was inadmissible, the ruling of the court would be error without injury, as it does not appear from the record that the value of such services was ever proved in the progress of the trial, or that any evidence was introduced touching the matter. The assignment of error, furthermore, does not cover the objection.

Where one party makes a proposition to settle a matter in controversy with another, on a condition specified, and it is rejected, because of a refusal to accept the condition, the rights of the parties remain unaffected, and they are legally placed in statu quo. The offer of the defendant to pay the plaintiff the sum of three hundred and fifty-seven dollars, being made with the view of a compromise, and the condition of receiving it in full payment of the judgment being rejected, it can no longer have any bearing on the case ; nor is it to be taken as a confession that anything is due, being regarded, in the eye of the law, as a mere overture of pacification between litigants. — 1 Greenl. Ev. § 192.

The rulings of the court were in accordance with these principles, and its judgment is affirmed.

Stone, J., not sitting.