State ex rel. Malouf v. Merrill , 1917 Wisc. LEXIS 58 ( 1917 )

Rosenberry, J.

The material part of sec. 3052m, Stats., is as follows:

“The bond required by section 3044 of the statutes on the' issuance of a writ of error and the undertaking required by section 3052 of the statutes on an appeal shall not be required if . . . tbe party desiring the writ of error or the taking of an appeal is unable to furnish such bond or undertaking; provided, however, that such certificate shall not be made except upon notice to the parties interested.”

The trial court in its decision said:

“My findings are intended to establish that the plaintiff, her husband, and the estate of Richard Malouf, deceased, are each of them, jointly and severally, unable to furnish sail] undertaking unless the same is furnished by said attorneys for the plaintiff, who are amply able so to do.

“The sole question before me, therefore, is: Is the plaintiff, who has made a contract with her attorneys to prosecute her action for a contingent fee, in this state, where the statute recognizes such contracts as valid and gives the attorney a lien for his fee on the cause of action and the proceeds recovered by judgment or settlement, entitled to the certificate that she is unable to furnish the undertaking required by see. 3052 of our statutes on appeal ?”

“I will refuse to make the certificate solely upon the ground that the attorneys for plaintiff have a beneficial interest in the result of the action and easily can furnish the necessary undertaking on appeal, and the facts, as found above, do not bring the plaintiff within the terms of sec. 3052m.”

Secs. 2591a and 2591m are as follows:

“Section 2591a. Any person having or claiming a right of action, sounding in tort or for unliquidated damages on contract, may contract with any attorney to prosecute the same and give such attorney a lien upon such cause of action and upon the proceeds or damages derived in any action brought for the enforcement of such cause of action, as security for his fees in the conduct of such litigation; when such agreement shall be made and notice thereof given to the opposite party or his attorney no settlement or adjustment of such action shall be valid as against the lien so created, provided that such agreement for fees shall be fair and reasonable, and this section shall not be construed' as changing the law in respect to champertous contracts.”

“Section 2591m. If any such cause of action shall have been settled by the parties thereto after judgment has been procured without notice to the attorney claiming such lien, such lien may be enforced and it shall only be required to prove the facts of the agreement by which such lien was given, notice to the opposite party or his attorney and -the rendition of the judgment, and if any such settlement of the cause of action is .had or effected before judgment therein, then it shall only be necessary to enforce said lien to prove the agreement creating the same, notice to the opposite party or his attorney and the amount for which said case was settled, which shall be the basis for said lien and it shall at no time be necessary to prove up the original cause of action in order to enforce said lien and suit.”

It is urged on behalf of the respondent that secs. 2591a and 2591m in effect make the attorneys for a suitor circumstanced as therein stated 'parties to the action; that the prosecution of the appeal is partially at least for the benefit of the attorneys, and that therefore, where able to do so, they should be required to furnish the security required by the statute. Such was the holding in Feil v. Wabash R. Co. 119 Fed. 490; Esquibel v. A., T. & S. F. R. Co. 206 Fed. 863; and Silvas v. Arizona C. Co. 213 Fed. 504.

“Section 2590. No attorney practicing in this state shall be taken as bail or security on any undertaking, bond or recognizance in any action or proceeding, civil or criminal, nor shall any practicing attorney become surety on any bond or recognizance for any sheriff, constable, clerk of court or justice of the peace.”

At common law it was champertous and illegal for a lawyer to encourage litigation hy agreeing to bear the costs thereof and to receive no compensation except in case of recovery. Stevens v. Sheriffs 76 Kan. 124, 90 Pac. 799, 11 L. R. A. n. s. 1153. However, by legislative enactment attorneys are given a lien upon the cause of action to secure payment of their fees, and this irrespective of whether or not the lawyer will be compensated in the event his client does not recover. We think, however, having in view the purpose of tbe statute, that it was not the legislative intent that attorneys at law under such circumstances should thereby in effect be made parties to the action and so liable for costs. Such a construction ignores entirely the provision of sec. 2590 which prohibits attorneys from becoming sureties for their clients. While we do not question the wisdom of the legislature, we are not disposed to extend the statute beyond its plain terms. The statute requires the party desiring the writ of error or the taking of the appeal to furnish the security or to make a showing that he is unable to do so. We are of the opinion that under such circumstances as are shown by this record the attorneys are not parties to the action and that the effect of the statute is not to make them such, but simply to secure to them fair and just compensation for services rendered to worthy but indigent clients.

By the Court. — The demurrer to the petition is overruled.