Cline Piano Co. v. Sherwood

Chadwick, J.

(dissenting) — I dissent from that part of the opinion of the majority wMch holds that the lien of the attorneys cannot be allowed. The authorities relied upon sustain the majority opinion and, while I believe that a proper rule was declared by this court in the cases cited, wherein it is held that an order of the court cannot be given the force of a judgment until it is formally entered as such, yet, like all rules, it should be measured by other rules with which it may come in contact. It is declared by all courts that an attorney should be protected in Ms service. The older rule that the laborer is worthy of his hire has been applied, and as between the parties to a proceeding and those standing in their shoes, the lien of an attorney should be held to attach when the court has announced Ms judgment, albeit the entry is not made at the time. So far as I have been able to discover, there are but two cases in the books directly in point. The one is the case in GS-reenleaf’s reports cited in the majority opinion, the other is the case of Young v. Dearborn, 7 Foster (N. H.) 324. In the latter case the case had been tried and an order made that judgment should be entered on the verdict. The judgment remained to be entered in form at the next term of the court to be holden some weeks later. Pending this formality a discharge was obtained. Nevertheless the lien of the attorney was sustained, the court saying:

“For some purposes, the judgment is regarded as rendered only from the time when the actual entry is made upon the records of the court below. If there is an attachment, the lien of the attachment continues until the expiration of thirty days after the entry of a judgment such as an execution may issue upon. So a prisoner, on mesne process, will be detained in prison for the same time. But for the purpose of securing the hen of the attorney, we think that the order of the court that judgment be entered, is to be deemed the judgment. Such order is a final determination of the case, the end of all litigation and controversy as to the merits of the case. The time when the judgment is entered up in form, seems to us entirely immaterial for this purpose. We are not able to discover, under our law and the practice under it, any difference between the case of an order made by the superior court, for a judgment to be rendered in the common pleas, and a like order made by that court itself. Time must ordinarily elapse between the making of such orders and the actual entry of judgments; but the delay ought not to affect the rights of the parties or their attorneys, relative to the subject of the controversy. For the purpose of ascertaining their rights in this respect, the order of the court for judgment should be deemed the judgment itself. Upon this view, the attorney acquired a complete and perfect lien upon the judgment, by the order of the superior court, and the defendant having had actual notice of his claim, when the agreement in question was executed, that agreement was void and inoperative as to his rights.”