Ward v. Sherbondy , 96 Iowa 477 ( 1895 )

Robinson, J.

The facts involved in this appeal are substantially as follows: On the twenty-first day of May, 1894, the district court of Olay county rendered a judgment in favor of tlxe defendant Elizabeth Sherbondy, and against the plaintiffs, for the sum of two hundred and ninety dollars and costs. The defendants Allen & Hendershott were her attorneys in the action, and, six days before the judgment was rendered, they wrote in the judgment docket a notice, of which the following is a copy: “Notice is hereby given that we ■claim an attorney’s lien upon any judgment procured by plaintiff in this cause for the sum of $450.00, for services rendered and disbursements in the cause.” This was signed by the attorneys. We understand that it was written in the portion of the docket assigned to that cause, and that, when judgment was rendered, the docket entries were completed. The judgment was recovered upon the claim of Elizabeth Sherbondy that she owned and was entitled to the possession of certain personal property that had been taken by the defendant in that action (the plaintiff in this), under and by virtue of certain chattel mortgages, and sold. The property, at the time of taking, was not, and' has never been, in the possession of the plaintiffs Ward & Lamb, and that is true of the proceeds of the sale. On the fifteenth day of June, 1894, execution was issued on the judgment in favor of Elizabeth Sherbondy, and placed in the hands of the sheriff for service. He levied it upon certain live stock owned by ■Ward & Lamb, and advertised it for sale. After the action by Elizabeth Sherbondy was commenced, on the twenty-fourth day of May, 1893, the plaintiffs Ward and Squire were garnished under an execution issued upon a judgment rendered by the district court of Olay county in favor of the intervener, Floete, and •against Elizabeth Sherbondy. On the twelfth day of August, 1893, Ward was garnished under an execution issued on a judgment in favor of Charles McAllister also against Elizabeth Sherbondy; and on the eight eenth day of May, 1894, the plaintiffs Ward & Lamb, Ward, and Squire were garnished under an attachment in favor of M. E. Griffin, and against the same defendant. On the twelfth day of June, 1894, Allen & Hendershott served on the plaintiffs Ward & Squire a notice in writing, the body of which was as follows: “You, and each of you, are hereby notified that the undersigned attorneys of Elizabeth Sherbondy, the plaintiff in the above entitled cause, claim a lien for the sum of four hundred and fifty dollars upon any money in your hands belonging to- the said Elizabeth Sherbondy, as well as- upon the judgment rendered at the May, 1894, term of the Clay county, Iowa, district court, against each of you, and in favor of said Elizabeth Sherbondy, for professional services actually rendered the said Elizabeth Sherbondy in said above-entitled action, under contract of employment with, and in our capacity as attorneys for said plaintiff.” Prior to the service of that notice none of the plaintiffs had any notice or knowledge of the claim for an attorney’s lien, and no notice of it was ever given to the intervener, nor to Elizabeth Sherbondy. The intervener claims a right to the amount which the plaintiffs owe on the judgment against them, paramount to the interests therein of the defendants, including McAllister and Griffin. The plaintiffs are ready to pay the amount they owe, and wish to prevent a sale of their property, but their judgment creditors and the attorneys who claim the lien are insolvent, and therefor the plaintiffs desire to- have the rights of the various claimants of the amount they owe determined, to the end that they may know to whom payment should be made. They have not been required to answer in any of the garnishment proceedings. The effect of the rulings and judgment of the district court was to require the plaintiffs to pay the intervener, of the money which they owe on the judgment against them, an amount sufficient to satisfy his judgment.

1 2 I. The appellants claim that Allen & Hendershott are entitled to a lien by virtue of section 215 of the Code, which is paramount to the rights acquired by the intervener under his garnishment. The section referred to is as follows: “An attorney has a lien for a general balance of compensation upon: (1) Any papers belonging to his client, which have come into ' his hands in the course of his professional employment. (2) Money in hands belonging to his client. (3) Money due to his client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party, or attorney of such party, if the money is in the possession or under the control of such attorney, which notice shall state the amount claimed, and, in general-terms, for what services. ■ (4) After judgment in any court of record, such notice may be given and the lien made effective against the judgment debtor by entering the same in the judgment docket opposite the entry of the judgment.” The first two subdivisions of the section are not applicable to- the facts in this case, and nothing is claimed under them. Nor do we understand that anything is, or can be rightfully, claimed by the appellants under the third subdivision. The notice in writing given to the plaintiffs of the claims of the attorneys was served after judgment was rendered, and long after the plaintiffs were garnished by the intervener. It is true the garnishment did not, strictly speaking, create a lien on the money which the plaintiffs were then owing (Buck-Reiner Co. v. Beatty, 82 Iowa, 355 (48 N. W. Rep. 96) and cases therein cited); but it had the effect to make the plaintiffs liable to the intervener for so much of the amount due on the judgment against them as was required to satisfy his judgment, and the attorneys, for their judgment creditor, could not acquire a lien on the amount which the plaintiffs were owing, excepting subject to their right to pay the intervener. The notice for which the statute provides is effectual to create an attorney’s lien only from tue time it is served or given, and operates to create a lien on money in the hands of the person who receives it, subject to prior rights thereto. Gas Co. v. West, 50 Iowa, 28; Tiffany v. Stewart, 60 Iowa, 210 (14 N. W. Rep. 241); Fisher v. City of Oskaloosa, 28 Iowa, 383; Hurst v. Sheets, 21 Iowa, 506; Casar v. Sargeant, 7 Iowa, 318. The stat ute is not extended by the provisions of the common law, but is in lieu of them, and fixes the rights of the parties in interest. Jennings v. Bacon, 84 Iowa, 406 (51 N. W. Rep. 15). It follows that the notice of June 12, 1894, did not create a lien on the money which the plaintiffs were owing to Elizabeth Sherbondy superior to the right thereto of the intervener.

But it is said that the provision for notice is solely for the benefit of the judgment debtor, and that, until the rendition of the judgment, third persons must take notice of the fact that the attorneys have a claim for the services which they are rendering for the judgment creditors. The case of Henry v. Traynor, (44 N. W. Rep. (Minn.) 11) is relied upon in support of that claim. The Minnesota statute under which that decision was rendered prescribes that an attorney shall have a lien “upon a judgment to the extent of the costs included therein, or, if there is a special agreement, to the extent of the compensation specially agreed upon, from the time of giving notice to the party against whom the judgment is recovered.” Gen. St. 1894, section 6194, subd. 4. This differs from the statute of this state in providing for a lien upon the judgment, instead of upon money in- the possession or under the control of the judgment debtor. Winslow v. Railway Co., 71 Iowa, 199 (32 N. W. Rep. 330). Whether this difference is sufficient to justify different holdings under the two statutes we need not determine. Our decision must be based upon the statute of this state, and upon the decisions of this court, so far as they are relevant. These lead us to conclude that attorneys have no lien under the third and fourth subdivisions of section 215 of the Code until the notices therein contemplated are actually given. The fourth subdivision provides a method for giving the notice to the judgment debtor which is authorized by the preceding subdivision; and conceding, for the purpose of this case, that the entry in the judgment docket involved in the case took effect •from the rendition of the judgment, it did not create any right against the plaintiffs superior to that of the intervener.

3 II. It'is insisted that the attorneys in question were entitled to an equitable lien for the services which they rendered their client, which should be enforced against the intervener. We do not think this claim is well founded. The statute provides for the only liens to which an attorney is entitled, and, to obtain them, the requirements of the statute must be observed.

We conclude that the judgment of the district court is right, and it is affirmed.