Dillon Ex Rel. Dillon v. Consolidated Delivery, Inc.

258 S.E.2d 829 (1979) 43 N.C. App. 395

Joshua M. DILLON by his Guardian ad Litem Thomas H. Dillon
v.
CONSOLIDATED DELIVERY, INC. and Yarvin Sylvester Carter.

No. 7926SC51.

Court of Appeals of North Carolina.

October 16, 1979.

Bailey, Brackett & Brackett by Martin L. Brackett, Jr. and William L. Sitton, Jr., Charlotte, for plaintiff-appellant.

Lacy W. Blue, Charlotte, for appellee.

ARNOLD, Judge.

Subsequent to the entry of the trial court's order in this case, we filed our opinion in the case of Covington v. Rhodes, 38 N.C.App. 61, 247 S.E.2d 305 (1978), cert. denied 296 N.C. 410, 251 S.E.2d 468 (1979). There we dealt with the subject of attorneys' charging liens in a fact situation much like the one now before us, and our holding in that case controls the present appeal.

Here, as in Covington, the attorney attempted to attach a lien before any judgment was entered. This he cannot do, since a charging lien attaches only to a judgment, not to a cause of action. Id. Furthermore, an attorney cannot attach a lien to a fund recovered after his discharge or withdrawal, since at that time the fund would not be "``recovered by his aid.' (Cite omitted.)" Id. at 67, 247 S.E.2d 309.

The trial court's declaration of a lien in Cohan's favor was error. We note, however, that under our holding in Covington, Cohan may seek to recover the reasonable value of his services to the plaintiffs through the time his employment ended.

Reversed.

WEBB and WELLS, JJ., concur.