Bessie v. Northern Pacific Railway Co
| Decision Date | 14 December 1905 |
| Citation | 105 N.W. 936,14 N.D. 614 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Richland county; Lauder, J.
Action by Aaron J. Bessie against the Northern Pacific Railway Company. Judgment for plaintiff, defendant appeals.
Reversed.
Judgment reversed, a new trial granted, and cause remanded.
Ball Watson & Maclay, for respondents.
A firm of attorneys is entitled to no lien in an action of tort until the claim is merged in a judgment. Nanna v. Coal Co., 31 N.E. 846; Abbott v. Abbott, 26 N.W 361; Randall v. Van Wagenen, 22 N.E. 361; Sherry v. Nav. Co., 72 F. 565; Simmons v. Almy, 103 Mass. 33.
A claim for unliquidated damages cannot be assigned before judgment. If a claim is not assignable, there can be no lien. Kusterer v. Beaver Dam, 56 Wis. 471, 43 Am. Rep. 75; Pulver v. Harris, 62 Barb. 500; affirmed, 52 N.Y 73; Coughlin v. Railroad Co., 71 N.Y. 443; Hunt v. Conrad et al., 50 N.W. 614; Harris v. Tyson, 36 Am. Rep. 126; Hutchison v. Pottes, 18 Vt. 614, 3 Am. & Eng. Enc. Law, 465, note 2; Hammons v. Great Northern Railway Co., 54 N.W. 1108.
The obligation in a personal injury case is not a debt. Hammons v. Railway Co., supra; Winslow v. Central Iowa Railroad Co., 32 N.W. 330; Sonnesyn v. Akin et al. , 12 N.D. 97 N.W. 561; In re Scoggin, 12511 F. Cases.
Attorneys of record alone can claim a lien. Foster v. Danforth, 59 F. 750.
Suspension of a member of a law firm works its dissolution as to new business, but it exists as to incomplete business. Bates on Partnership, section 707; Page v. Wolcott, 15 Gray, 536; Walker v. Goodrich, 16 Ill. 341; Osment v. McElrath, 9 P. 731; McCoon v. Galbraith, 29 Pa.St. 293; Denver v. Roane, 99 U.S. 355, 25 L.Ed. 476; Waldeck v. Brande, 21 N.W. 533; Smyth v. Harvie, 31 Ill. 62; 22 Am. & Eng. Enc. Law, 211.
The contract was with the firm, and work done under it gave rise to a claim due it as a copartnership, even after its dissolution, and individual partners could not sue. Parsons on Partnerships, 398; Hyde v. Moxie Nerve Food Co., 36 N.E. 585; Thompson v. McDonald, 10 S.E. 448; Snow v. Burnett, 1 S.W. 634; Mosgrove v. Golden, 101 Pa.St. 605; Dobbin v. Foster, 1 Car. & K. 323; Lindley on Partnership, 412; Fish v. Gates, 133 Mass. 441; Davis v. Megroz, 26 A. 1009; Bates on Partnership, 1018.
Attorney loses his right to practice by removal from the state. Re Mosness, 39 Wis. 509; Bank v. Risley, 6 Hill. 375; Rev. Codes, section 421.
Plaintiff's notice fails to state for what service a lien is claimed as required by statute. Ward et al. v. Sherbondy et al., 65 N.W. 413; Forbush v. Leonard et al., 8 Minn. 303 (Gil. 267); Henchey v. Chicago, 41 Ill. 136.
Payment to, or settlement with one member of a firm binds all. Bates on Partnership, section 682; Gordon v. Freeman, 11 Il., 14; Major v. Hawkes, 12 Ill. 297; Gillilan v. Sun Mutual Ins. Co., 41 N.Y. 376; Granger v. McGilvra, 24 Ill. 152; Williams v. More, 63 Cal. 50; Jeffries v. Mutual Life Ins. Co., 110 U.S. 305, 28 L.Ed. 156.
Chas. E. Wolfe, for respondent.
Plaintiff's notice of lien was sufficient in form and substance. The statute giving a lien is remedial and to be liberally construed. Crowley v. LeDuc, 21 Minn. 412; Sutherland on Stat. Const., Par. 430; Weeks on Attorneys, par. 360.
An attorney's lien upon a judgment extends to the money arising from it and the cause of action upon which it is based. Winslow v. Central Railroad Company, 32 N.W. 330; Leighton v. Severson et al., 66 N.W. 938; Goodrich v. McDonald, 112 N.Y. 157, 19 N.E. 6409; Hrock v. Altman & Taylor Co., 3 S.D. 477.
Defendant's settlement with Ross was collusive and in fraud of plaintiff's rights. Porter v. Hanson, 36 Ark. 591; Tullis v. Bushnell, 65 How. 465; Eberhardt v. Schuster, 10 Abb. 374; Weeks on Attorneys, par. 377, 3 Am. & Eng. Enc. Law (2d Ed.) 471.
A settlement between parties to litigation with view of defrauding the attorney, or which in law might accomplish that, will not discharge the defendant from paying him. McDonald v. Napier, 14 Ga. 89; Young v. Dearborn, 27 N.H. 324; Courney v. McGavock, 23 Wis. 619; North Chicago Railroad v. Ackley, 58 Ill.App. 572; Hubbel v. Dunlap, 19 Ky. Law. Rep. 656, 41 S.W. 432.
Where a settlement is made collusively with intent to defraud the attorney, absence of actual notice will not protect a judgment debtor. Howard v. Osceola, 2 Wis. 433; Dietz v. McCallum, 44 How. Pr. 493.
On April 8, 1902, one George Ross commenced an action against the defendant in the district court of Cass county for damages for personal injuries to himself alleged to have been negligently caused by the defendant. The firm of Freerks, Bessie & Freerks was retained by Ross and were his attorneys in said action, and regularly signed the summons and complaint in the firm name. The plaintiff in this case, as a member of said firm, orally made a contract with said Ross on behalf of said firm relating to the attorney's fees and expenses in said action. The firm was to receive one-half of the amount recovered from the defendant, after deducting disbursements paid by the attorneys in the prosecution of the action. On May 12, 1902, said firm was dissolved by operation of law by the suspension from practice of M. C. Freerks. Thereafter all papers in the action were signed by or in the name of George W. Freerks, who also personally conducted the trial. On January 17, 1903, Ross made a contract with George W. Freerks that Freerks alone should act for him as his sole attorney in that case, and that he should receive 50 per cent of the amount recovered in the action less the disbursements. On January 19, 1903, the trial was commenced, and ended on January 22d with a verdict of $ 8,000 in favor of the plaintiff. The plaintiff in this action had done some work in the preparation of the case for trial, but was not present at the trial through no fault of his own, but by reason of the fact that George W. Freerks failed to advise him when the trial was to commence. After the firm was dissolved no new partnership was entered into between George W. Freerks and this plaintiff. They entered into an agreement as to the division of the fees in pending cases, under which Freerks was to receive two-thirds of all fees and this plaintiff one-third, and this was to apply to the Ross case, which had not then been tried. Freerks was to have charge of the firm office at Fargo, and the plaintiff of the Wahpeton office. On January 3, 1903, Freerks filed a claim for a lien against the judgment for the sum of $ 4,000. On March 17, 1903, the plaintiff filed a claim for a lien against said judgment for the sum of $ 1,346.20, and served a notice on the defendant's attorneys of record in that case that he claimed a lien on the judgment for that sum. On July 2, 1903, the district court set aside the verdict of the jury and granted a new trial in the action. On July 15, 1903, Ross settled his case with the defendant for the sum of $ 5,000, and was paid $ 3,500 of said sum by defendant's attorneys, before Freerks or this plaintiff was advised of such settlement. The sum of $ 1,500 was turned over by said attorneys to one Ackerman, defendant's and Ross' agent, for and on account of Freerks' fees. Ross gave Ackerman instructions to pay it over to Freerks if he would give a "clear receipt" for the attorney's fees in the case. This sum was paid to Freerks, and he receipted therefor to Ross. The receipt is not in evidence, nor is it shown what it was. This plaintiff had no notice of such settlement until it was perfected, and has received no pay for his services. Before the new trial was granted one of the defendant's attorneys informed the plaintiff that he would be advised if the judgment was to be paid before it would be paid to anyone. Plaintiff made a request of the attorney that this notice be given to him, as he was having "trouble with Freerks & Freerks, and that he could not get his affairs settled with them, and that he did not want that case settled without having his rights protected." The attorney so agreeing to notify the plaintiff was taking his vacation when the settlement was made, and failed to notify the members of his firm of plaintiff's request, and they made the settlement in ignorance of such request. The plaintiff brings the action for the recovery of $ 1,346.20. The trial court gave him judgment for the sum of $ 833.33, upon the theory that he is entitled to receive one-third of one-half of the amount recovered in the settlement pursuant to the contract with Ross and the arrangement for division of fees between plaintiff and George W. Freerks on all pending cases, including the Ross case. The appeal is from the judgment, and no motion for a new trial was made in the district court.
The respondent contends that this court is without authority to review the evidence and thereby determine whether the findings are sustained by the evidence, for the reason that no motion for a new trial was made. This action is one properly triable to a jury, but a jury trial was regularly waived. The appeal is, therefore, not under section 5630, Rev. Codes 1899, but must be determined under the law applicable to appeals in actions at law tried by the court. Whether the sufficiency of the evidence to sustain the findings can be reviewed without a motion for a new trial depends upon the construction of section 5627, Rev Codes 1899, which reads as follows, so far as material: "Any question of fact or law decided upon trials by the court or by a referee and appearing upon the record properly excepted to in a case in which an exception is necessary, may be reviewed by the Supreme Court, whether a motion for a new trial was or was not made in the court below, but questions of fact...
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