Berrum v. Georgetta

ON REHEARING February 2, 1940. 93 P.2d 479. OPINION A rehearing was granted to consider the following questions:

1. Is the judgment against Anderson P. Berrum illegal because:

a. It is nowhere alleged in the complaint that he promised to pay respondent an attorney fee?

b. It is nowhere alleged in the complaint that respondent performed services for said Anderson P. Berrum?

2. Does the complaint present an action to foreclose an attorney's lien?

1. We did not determine these points made by appellants in our original opinion because they had not been assigned as errors, but as the errors alleged in this respect appear from the judgment roll they should be considered and determined. We do so reluctantly because the questions were not raised in the court below, but belatedly in the reply brief in this court.

The first two points are devoid of merit. Counsel for appellants did not give them a passing glance in his brief on rehearing. They may be summarily dismissed. 2. The right of an attorney to enforce an attorney's lien against the judgment debtor does not rest upon the principle of any promise from or services performed for such debtor, but on the statute giving such lien, and on the conduct of the judgment debtor with reference thereto. Consequently, to say the least, such allegations would have been out of place in the complaint.

We pass to the latter question, namely: "Does the complaint present an action to foreclose an attorney's lien?" Counsel for appellants argues that the allegations of the complaint should have been in accordance with the requirements of section 9048 N.C.L. The complaint is not in that form, and we are of the opinion that it need not be.

In part the statute which governs reads: "* * * From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim which attaches to a verdict, report, decision, or judgment in his client's favor and the proceeds thereof in whosesoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment. * * *" Section 8923.

By this statute an attorney is given a lien for his services, and while it does not outline the procedure for its enforcement, we are of the opinion that it was not intended to leave the attorney remediless. No other statute prescribes a remedy.

3-5. It has been truly said that this lien is peculiar and unlike any other lien known to the law. In re H.C. Roberts Electric Supply Co., 131 Misc. 119, 226 N.Y.S. 211. It is quite generally held that statutes creating such a lien are remedial in character and should be liberally construed in aid of the object sought by the legislature, which was to furnish security to attorneys by giving them a lien upon the subject of the action. 7. C.J.S., Attorney and Client, sec. 208. In so construing the statute before us we are persuaded that an independent action such as this is maintainable for the enforcement of the lien. 1 Bancroft's Code and Practice Remedies, p. 91 and note 11; 6 C.J. 797, and cases cited in note 30; Walcutt v. Huling et al., 5 Ohio App. 326, affirmed 92 Ohio St. 518, 112 N.E. 1087; Lundy v. Cappuccio, 54 Utah, 420, 181 P. 165. Under this view the complaint before us is sufficient to charge appellant Anderson P. Berrum with liability. It alleges that plaintiff (respondent here) is an attorney at law; that Christine Berrum employed him as her attorney in an action for divorce instituted by her against Anderson P. Berrum, and that services were rendered; that she obtained a judgment against her husband, and the terms thereof; that Christine Berrum agreed to pay plaintiff for his services, the amount thereof, and failed to do so; that Anderson P. Berrum had notice of plaintiff's attorney's lien, and the form and manner thereof; that despite the notice of lien Anderson P. Berrum paid to the clerk of the court for Christine Berrum, $8,450.

The complaint contains a prayer for relief against Christine Berrum and Anderson P. Berrum for the amount of the attorney's lien. The allegations of the complaint brought the action within the purview of the statute giving the lien.

In fact, it has been held that when the statute creating the lien does not require notice, the giving of notice is not essential to the statement of a cause of action; that the statute is itself notice to the world of the lien. Walsh v. Hoskins,53 Mont. 198, 162 P. 960; Peri v. New York Cent. H.R.R. Co.,152 N.Y. 521, 46 N.E. 849; In re Flower, Sup., 167 N.Y.S. 778; Whitwell v. City of Aurora, 139 Mo. App. 597, 123 S.W. 1045. As to this we do not decide. Counsel for appellant concedes that the judgment was valid against Christine Berrum, who employed respondent. It is equally valid against Anderson P. Berrum so far as the statement of a cause of action is concerned. He had notice of respondent's lien against Christine Berrum's cause of action and the money judgment she recovered, but notwithstanding, deprived respondent of the security given by the statute by paying the judgment to the clerk for her. The principle underlying the statute by which Anderson P. Berrum will be held liable is stated in the case of Welsh v. Hole, 1 Dougl. K.B. 238, 99 Eng. Reprint, 155, wherein Lord Mansfield said: "An attorney has a lien on the money recovered by his client for his bill of costs; if the money come to his hands, he may retain to the amount of his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court, they will prevent its being paid over till his demand is satisfied. I am inclined to go still further, and to hold that, if the attorney give notice to the defendant not to pay till his bill should be discharged, a payment by the defendant after such notice would be in his own wrong, and like paying a debt which has been assigned after notice."

6. This principle concerning costs of an attorney has been applied to attorney's compensation in decisions and by statute, and justly. The laborer is worthy of his hire in the field, in the forum of the law, and elsewhere, and security for it is altogether equitable. We are in accord with the very considerable authority to the effect that an attorney who has a charging lien for his services is, to the extent thereof, to be regarded as the equitable assignee of the judgment. In re McCormick's Estate, 182 A. 485, 14 N.J. Misc. 73; Newbert v. Cunningham, 50 Me. 231, 79 Am. Dec. 612; Epp v. Hinton, 102 Kan. 435, 170 P. 987; Grimes Savings Bank v. McHarg, 217 Iowa 636, 251 N.W. 51; Stoddard v. Lord, 36 Or. 412, 59 P. 710; Jacobsen v. Miller, 50 N.D. 828,198 N.W. 349, 34 A.L.R. 317; Williams v. New England Securities Co.,170 Ark. 139, 278 S.W. 961; Anderson v. Star-Bair Oil Co.,34 Wyo. 332, 243 P. 394. Bancroft Code Practice Remedies, part 1, chapter V, section 73; 6 C.J. 766, and cases cited in note 81, in support of the text. 7. A judgment debtor therefore who satisfies the judgment, as was done in this case, without regard to the lien, is, as Lord Mansfield phrased it, "in his own wrong and like paying a debt which has been assigned after notice." He does so at his own risk and is liable. 6 C.J. 792 and cases cited in note 64.

A judgment creditor should not be enabled to "run away with the fruits of the cause without satisfying the legal demands of his attorney, by whose industry, and in many instances at whose expense, those fruits are obtained." Anderson v. Star-Bair Oil Co., supra [34 Wyo. 332, 243 P. 398], quoting from Read v. Dupper, 6 Term R. 366, 101 Eng. Rep. 595.

8. Respondent contends that an action could have been maintained against the judgment debtor alone, but we are of the opinion that the judgment creditor was a necessary party here, as the issues involved a determination of her liability to the attorney and the amount thereof.

The judgment and order denying a new trial are affirmed.