Akers v. Akers

• Decision Date: 02 February 1951
• Docket Number: No. 35387,35387
• Citation: 46 N.W.2d 87,233 Minn. 133
• Parties: AKERS v. AKERS et al.
• Court: Minnesota Supreme Court

Page 87

46 N.W.2d 87

233 Minn. 133

AKERS v. AKERS et al.

No. 35387.

Supreme Court of Minnesota.

Feb. 2, 1951.

Syllabus by the Court

1. The court has jurisdiction in a summary proceeding to compel an attorney to account to a client for money or property which has come into his possession and which he has no right to retain.

2. Whether in a particular proceeding the attorney should be made to account in a summary proceeding or the client put to his remedy by an action at law rests largely in the discretion of the trial court.

3. It is not necessary that the relation of attorney and client exist before the court may act.

4. Attorney's liens for services are governed by statute in this state.

5. Our lien statute is a substitute for the common-law lien.

6. After dismissal of a suit for divorce, no attorney's lien may be established.

Hyman M. Juster, Minneapolis, for appellant.

Mahoney, Morrison & Cragg, Minneapolis, for respondent.

KNUTSON, Justice.

Jean Marjorie Akers commenced an action for divorce against her husband, Arthur. Appellant acted as her attorney. Before trial, the parties effected a reconciliation and personally dismissed the action. The dismissal is dated July 21, 1950. Prior to the dismissal of the action, plaintiff had left with appellant three Russian sable furs, two diamond wedding rings, and control over a Cadillac automobile. Appellant claims that this property was left with him so that his client's husband could not reach it and also as security for the payment of his attorney's fees. On July 22, 1950, the day following the dismissal of the action, appellant prepared and filed a notice of attorney's lien, and he now claims that he has a right to a lien on the property left with him for payment of his attorney's fees. On July 24, 1950, the husband, defendant in the divorce action, procured from the court an order to show cause why appellant should not be required to surrender the property mentioned above to the parties to the divorce suit. He claimed title to the property as administrator of an estate then being probated in Cook county, Illinois. Prior to a hearing, appellant released the automobile, so we are not concerned with that item of property. After a hearing, the court issued its order requiring appellant to release and deliver the property to the parties to the action. This appeal is from that order.

The appeal raises principally four questions:

(1) May the respective rights of the parties to the property be determined in a summary proceeding on an order to show cause?

(2) Is there any common-law attorney's lien aside from that provided by statute in this state?

(3) May appellant assert and enforce a lien for his fees subsequent to the dismissal of an action for divorce?

(4) If appellant has no enforceable attorney's lien, may he still hold the property in his possession as security for his fees under the circumstances shown in this case?

The power of a court to compel an attorney in a summary proceeding to return to a Client money or property in his possession which he has no right to retain can hardly be open to question. The power existed at common law and is expressly recognized by our statute. M.S.A. § 481.14. In Landro v. Great Northern Ry. Co., 122 Minn. 87, 88, 141 N.W. 1103, 1104, we said:

'* * * An attorney is an officer of the court. The court has jurisdiction of him. When he collects money, belonging to his client, to whom he is under a constant obligation of the highest fidelity, he may not keep it, and from the vantage ground of a defendant in possession compel his client to pursue the slower process of law by ordinary suit. If the attorney has a lien, it may be summarily adjusted. If there is a contract as to fees, the court will construe it. If the attorney has a claim for fees, their amount may be determined. One court puts it this way: 'The law is not guilty of the absurdity of holding that, after a client has spent years in collecting through his attorney a lawful demand, he shall be put to spending as many more to collect it from his attorney, and, if that attorney should not pay, then try the same track again.' Bowling Green v. Todd, 52 N.Y. 489 (493). The general rule is thoroughly well settled. Weeks on Attorneys, § 94; 3 Am. & Eng.Enc. (2d Ed.) Law, 411; 4 Cyc. 975; Union Bldg. & Saving Ass'n v. Soderquist, 115 Iowa, 695, 87 N.W. 433; Schell v. Mayor of City of N.Y., 128 N.Y. 67, 27 N.E. 957; In re Ernst, 54 App.Div. 363, 66 N.Y.S. 620; Lynde v. Lynde, 64 N.J.Eq. 736, 52 A. 694, 58 L.R.A. 471, 97 Am.St.Rep. 692.'

'* * * The basis of the statute as well as of the rule at common law is found in the fact that attorneys are officers of the court wherein they practice, forming a part of the machinery of the law for the administration of justice, and as such subject to the disciplinary authority of the court, and to its orders and directions in respect to their relations to the court as well as to their clients.' Charest v. Bishop, 137 Minn. 102, 105, 162 N.W. 1063, 1064.

Whether in a particular case the matter should be summarily dealt with or the client put to his remedy by an action at law rests in the sound discretion of the trial court. Charest v. Bishop, supra.

In Misenich v. Nelson, 148 Minn. 479, 181 N.W. 319, the court ordered the attorney to return part of the money left with him, permitting him to retain the part which he had earned.

In Union Bldg. & Sav. Ass'n v. Soderquist, 115 Iowa 695, 698, 87 N.W. 433, 434, the Iowa court said: '* * * The fact that the client has a legal remedy for the recovery of the money does not affect the right of the court to see that its own officer does not act contrary to his duty. In re Grey (1892) 2 Q.B. 440. In the summary proceeding the court has the power to adjust any set-off which the attorney may have on account of fees or other charges due to him in connection with the proceeding in which he received the money in question, or as the result of any other services for which he has a lien on money of his client coming into his hands.'

Nor is it necessary that the relation of client and attorney exist before the court may act. In State v. Carey, 151 Minn. 517, 521, 187 N.W. 710, 712, we said: '* * * That the conventional relation of attorney and client need not necessarily exist in order that one who has paid money to an attorney for a certain purpose may compel its return in a summary manner is shown by the following cases: Hess v. Conway, 92 Kan. 787, 142 P. 253, 4 A.L.R. 1580; Anderson v. Bosworth, 15 R.I. 443, 8 A. 339, 2 Am.St.Rep. 910.'

In the case now before us, the court found that appellant's client in the divorce action was present at the hearing and, while not the moving party, joined in the proceeding. Even if this were not true, the court would still have power to require appellant, as an attorney, to account to the person who actually owned the property if he has no right to hold it. Appellant admits that the property was deposited with him, at least partly, in order to keep his client's husband from reaching it during the pendency of the divorce action. The court found this to be the fact. Under these circumstances, appellant cannot be heard to complain about a summary determination of his rights to retain possession.

Our statute, M.S.A. § 481.13, gives an attorney a lien for his compensation:

'(1) Upon the papers of his client coming into his possession in the course of his employment;

'(2) Upon money in his hands belonging to his client;

'(3) Upon the cause of action from the time of the service of the summons therein, or the commencement of the proceeding, and upon the interest of his client in any money or property involved in or affected by any action or proceeding in which he may have been employed, from the commencement of the action or proceeding, and, as against third parties, from the time of filing the notice of such lien claim, as provided in this section;

'(4) Upon money or property in the hands of the adverse party to the action or proceeding in which the attorney was employed, from the time such party is given notice of the lien. If the client has an interest in any real or personal property, whether held by any bailee, pledgee, judgment creditor or otherwise, the attorney shall be entitled to a lien upon such property wherever situated, for the value of his services, whether under a special agreement as to compensation or for the reasonable value thereof, and shall also have a lien for any contributions in money or services which the attorney makes for the preservation of the client's interest in the property or for the enhancement of the value thereof. If the client is not a resident of this state, jurisdiction may be had by service of notice of order to show cause without the state or by mailing a copy thereof to the client outside of the state, without the need of further jurisdictional requirements, provided the property itself is within the State of Minnesota;

'(5) Upon a judgment, and whether there be a special agreement as to compensation, or whether a lien is claimed for the reasonable value of the services, the lien shall extend to the amount thereof from the time of giving notice of his claim to the judgment debtor, but this lien is subordinate to the rights existing between the parties to the action or proceeding;' Attorney's liens fall into one of two classes, namely, (1) a general, possessory, or retaining lien; or (2) a charging lien. 5 Am.Jur., Attorneys at Law, § 208.

The first type of lien is dependent upon possession and is a passive one, which can be enforced only by retaining possession until the attorney's charges are satisfied. In Northrup v. Hayward, 102 Minn. 307, 113 N.W. 701, we stated that only the possessory or retaining lien was known to the common law, but that is not a correct statement of the law. Both types of lien were recognized by the common law. Westerlund v. Peterson, 157 Minn. 379, 197 N.W. 110; Norrell v....