Baker v. Tullock

• Decision Date: 19 March 1938
• Docket Number: 7768.
• Citation: 77 P.2d 1035,106 Mont. 375
• Parties: BAKER v. TULLOCK, Sheriff, et al.
• Court: Montana Supreme Court

77 P.2d 1035

106 Mont. 375

BAKER v. TULLOCK, Sheriff, et al.

No. 7768.

Supreme Court of Montana

March 19, 1938

Appeal from District Court, Tenth District, Fergus County; Stewart M. McConochie, Judge.

Action by C. E. Baker against Guy Tullock, as Sheriff of Fergus County, Mont., and others, to enjoin the defendants from selling a cause of action on which the plaintiff claimed an attorney's lien.From an order denying a motion to dissolve a temporary restraining order and making the restraining order effective pendente lite, the defendants appeal.

Affirmed.

Merle C. Groene, of Lewistown, for appellants.

C. E Baker, of Lewistown, for respondent.

ANGSTMAN Justice.

Herbert L. Phelps recovered judgment against the Union Central Life Insurance Company.Plaintiff Baker acted as attorney for Phelps.On appeal the judgment was reversed and the cause remanded for a new trial.Phelps v. Union Central Life Insurance Co.,105 Mont. 195, 71 P.2d 887.The insurance company then filed a cost bill and obtained judgment against Phelps for its costs on that appeal.It then caused execution to be issued and placed in the hands of defendant Tullock Sheriff of Fergus county, and defendant McPherson, Sheriff of Valley county, who levied upon the cause of action of Phelps against the insurance company.Plaintiff Baker thereupon served notice upon defendants of a claim for $952.50, for attorney's fees for services rendered in the action, and claimed a lien on the cause of action, and brought this action to enjoin the defendants from selling it.

On the filing of the complaint and a supporting affidavit an order to show cause and a temporary restraining order was issued.Defendants thereupon filed a motion, supported by affidavit to dissolve the temporary restraining order.After hearing the motion was denied and the restraining order made effective pendente lite.This appeal followed.

The correctness of the court's decision depends partially upon the construction to be placed upon section 8993, Revised Codes.It provides: "The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law.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."

Defendants contend that section 8993 gives merely an inchoate right to a lien, but that the lien of the attorney does not actually attach until there has been a verdict, report, decision, or judgment in his client's favor.Plaintiff contends that the lien attaches from the commencement of the action and attaches to the cause of action, and thereafter also attaches to the verdict, report, decision, or judgment in his client's favor.

Section 8993 is a remedial statute which should be construed in advancement of the remedy, and "so as to secure and protect, and not defeat, the rights and objects intended by its provisions."Crowley v. Le Duc,21 Minn. 412.It is competent for the Legislature to provide for an attorney's lien on the client's cause of action even though the cause of action is "an intangible, incorporeal something," and "the lien which the statute fixes on the plaintiff's right of action follows the transition, without interruption, and simply attaches to that into which the right of action is merged.If a judicial recovery is obtained, the lien attaches to that; if a compromise agreement is made, the lien attaches to that; and in each case the attorney's interest is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent."Illinois Central R. Co. v. Wells,104 Tenn. 706, 707, 59 S.W. 1041, 1043;and compareTompkins v. Nashville, Chattanooga & St. Louis R. Co.,110 Tenn. 157, 72 S.W. 116, 61 L.R.A. 340, 100 Am.St.Rep. 795.

The clause in our statute which starts with the words "which attaches" was not intended to restrict but to enlarge or extend the attorney's lien.Without that clause there was room for doubt as to whether the lien would extend to the verdict, report, decision, or judgment.After judgment is recovered, the cause of action is merged in the judgment, and for that reason we think the Legislature added the phrase to make sure that the lien which theretofore existed on the cause of action should attach to the judgment and thereafter to the proceeds of the verdict, report, decision, or judgment.Such is the interpretation of an identical statute made by the Supreme Court of Missouri.Young v. Levine,326 Mo. 593, 31 S.W.2d 978;Noell v. Missouri Pac. R. Co.,335 Mo. 687, 74 S.W.2d 7, 94 A.L.R. 684.

In Schempp v. Davis,201 Mo.App. 430, 211 S.W. 728, 730, the court, in speaking of an identical statute, said: "The attorney's lien is not only on the cause of action--which includes both his client's right and the proceeding for redress--but also on the proceeds of that cause of action successfully enforced.In other words, the lien extends to the fruits of that successfully enforced cause of action."This court has also held that an attorney may assert his lien prior to judgment.Walsh v. Hoskins,53 Mont. 198, 162 P. 960.

Defendants contend that if plaintiff has a lien on the cause of action, there is nothing to prevent the defendants from selling the cause of action subject to the lien.Plaintiff contends that under sections 8283and8285, Revised Codes, before defendants may sell the cause of action they must pay or tender to plaintiff the amount of his lien.Whether sections 8283and8285 have application here we need not determine.This court has held that a cause of action is subject to execution, State ex rel. Coffey v. District Court,74 Mont. 355, 240 P. 667, excepting those based upon tort, Coty v. Cogswell,100 Mont. 496, 50 P.2d 249;Toole v. Paumie Parisian Dye House,101 Mont. 74, 52 P.2d 162.

In the Coffey Case it does not appear that there was any objection to the sale other than upon the ground that the procedure in making the levy and sale was not proper.The sale was held to have been improperly made, and it was set aside.The court held that a cause of action was subject to execution, levy and sale.But there no one was objecting to the sale, as here.In executing the writ, the sheriff with reference to things in action may either collect or sell them.Section 9431.He has discretion to do...