Berrum v. Georgetta

Citation98 P.2d 479,60 Nev. 1
Decision Date02 February 1940
Docket Number3266.
PartiesBERRUM et al. v. GEORGETTA.
CourtSupreme Court of Nevada

Appeal from Second District Court, Washoe County; Edgar Eather Judge.

On rehearing.

Judgment and order denying a new trial affirmed.

For original opinion, see 93 P.2d 525.

James T. Boyd, of Reno, for appellants.

Clyde D. Souter, of Reno, for respondent.

DUCKER Justice.

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?

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.

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.

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, § 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...

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7 cases
  • Ewing v. Sargent
    • United States
    • Nevada Supreme Court
    • 26 Febrero 1971
    ...80 Nev. 331, 393 P.2d 138 (1964), Whiteman v. Brandis, 78 Nev. 320, 372 P.2d 468 (1962), Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479 (1939), Maitia v. Allied Land & Live Stock Co., 49 Nev. 451, 248 P. 893 (1926), and Burgess v. Helm, 24 Nev. 242, 51 P. 1025 (1898). These author......
  • Clark County v. State
    • United States
    • Nevada Supreme Court
    • 29 Octubre 1948
    ...below. Wheeler v. Hurley, 49 Nev. 70, 236 P. 559; Carroll v. Carroll, 51 Nev. 188, 272 P. 3; Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479; re Torres Estate, 61 Nev. 156, 120 P.2d 816, 135 A.L.R. 481; Edmonds v. Perry, 62 Nev. 41, 140 P.2d 566; Johnston v. DeLay, 63 Nev. 1, 158 P......
  • Close v. Redelius
    • United States
    • Nevada Supreme Court
    • 6 Marzo 1950
    ...451, 465, 248 P. 893, 897; Paterson v. Condos, 55 Nev. 134, 142, 28 P.2d 499, 500; Berrum v. Georgetta, 60 Nev. 1, 5, 93 P.2d 525, 526, 98 P.2d 479. 'Therefore, defendant's motion for a new trial should be, and the same hereby is, 'Defendant's objection to the Cost Bill is sustained as to t......
  • Morse v. Eighth Judicial Dist. Court in and for Clark County
    • United States
    • Nevada Supreme Court
    • 23 Junio 1948
    ...special or charging lien. As an example of this confusion both parties rely upon the case of Berrum v. Georgetta, 60 Nev. 1, 93 P.2d 525, 98 P.2d 479. attorneys rely upon this case as laying down the procedure they followed in commencing their action to recover $10,000 attorney fees from th......
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2 books & journal articles

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