Gammon v. Chandler , 30 Me. 152 ( 1849 )

Tenney, J.

— This is a suit upon a judgment of a justice of the peace, upon an issue presented by the pleadings, in favor of the plaintiff, for the fees and disbursements of the attorney, by whose agency the judgment was obtained. The case comes before the Court on exceptions to the ruling of the Judge of the District Court, “ upon the facts agreed by the parties,” at the trial. The defence is, that no final judgment was obtained ; and parol evidence was introduced, showing that after the trial by the justice, and after a judgment was announced by him, an appeal was claimed and allowed, and subsequently, the demand embraced in the suit was settled and discharged. The copy of the record of the judgment of the justice was duly certified by him, and the Judge of the District Court disregarded the parol evidence of the appeal, and held, that final judgment having been shown by the justice’s record, it was conclusive. He also ruled, that the action could be maintained for the fees and disbursements of the plaintiff’s attorney in the original action, notwithstanding the discharge given by the creditor.

The attorney of the creditor, who recovers a judgment, has' a lien upon it, and upon the execution, which may issue thereon, for his fees and disbursements in the suit; but such lien does not attach to the claim which is the object of the suit, till it has ripened into final judgment. Such have- been the decisions under statutes in Massachusetts, substantially the same as those of this State, enacted since separation; and our statute of 1821, chap. 60, sect. 4, has received a similar construction. Baker v. Cook, 11 Mass. 236; Potter, Judge, v. Mayo & als. 3 Greenl. 34; Stone v. Hyde, 22 Maine, 318. The Revised Statutes of this State, chap. 117, sect. 1 & 37, recognize the same right of the attorney, and limit it to the execution and the judgment.

Whether a final judgment has been rendered or not, must depend upon the record of the Court, before whom the suit was commenced. This evidence cannot be controlled or varied by parol testimony. Moody v. Moody, 2 Fairf. 247; Southgate v. Burnham, 1 Greenl. 396. The copy of the judgment of the justice, which appears in this case, shows that his judgment was final, and that no appeal therefrom was taken. The creditor was entitled to his execution upon that judgment, and the evidence relied upon by the defendant could not impeach it.

It is insisted, that the action cannot be maintained, because the attorney neglected for a long time to collect the costs, and omitted to give notice to the debtor of his intention to resort to his lien upon the judgment and execution. The statute having given to the attorney the lien against the debtor, without any restriction, the omission to enforce it, cannot deprive him of that right, without his consent express or implied.

The statute does not require that the attorney should give notice to the debtor of his design to rely upon his lien in order to retain it against the discharge of the creditor. And in this case, it is not necessary that it should be decided, whether the lien is lost by such discharge, if the debtor was ignorant that such security existed, by reason of having no knowledge, that an attorney was employed in the suit. By the facts agreed in the case, the defendant had full information upon this point. Pleadings were filed before the justice, and it is to be presumed that this was done by the attorney, when one was employed; and it further appears, that at the time of the settlement and discharge relied upon by the defendant, he lent the creditor a sum of money to enable him to make payment of the costs to the attorney, for whose benefit this action is prosecuted to obtain them. Exceptions overruled.