Boston & Colorado Smelting Co. v. Pless

• Decision Date: 26 March 1886
• Court: Colorado Supreme Court
• Parties: BOSTON & COLORAD SMELTING CO. v. PLESS.

10 P. 652

9 Colo. 112

BOSTON & COLORAD SMELTING CO. v. PLESS.

Supreme Court of Colorado

March 26, 1886

Appeal from district court, Park county. On motion to dismiss cause.

The attorney who tried this cause in the court below, and obtained the judgment for Pless, took a written assignment of one-half thereof as security for his fees. Upon the appeal this attorney employed Stuart Bros., and reassigned to them one-fourth of the judgment to secure their fees. Stuart Bros. rendered valuable services, and incurred some expense, in connection with the appellate proceedings. Judgment of affirmance was rendered in the supreme court, but a rehearing afterwards allowed. Subsequent to the affirmance as aforesaid, Stuart Bros. placed upon the files of that court a notice informing appellant that they held an assignment of one-fourth of the judgment, the original assignment or a copy thereof having been previously filed in the court below. Thereafter, pending argument on the rehearing, appellant and appellee, without the knowledge or consent of Stuart Bros. made a settlement of the controversy, the latter receipting payment in full of the judgment. The written release by appellee contains a stipulation that the cause may be dismissed. The motion to dismiss is now resisted by Stuart Bros. upon grounds stated in the opinion.

Wilkin & Bailey, R. D. Thompson, and E. O. Wolcott, for appellant, Boston & Colorado Smelting Co.

Geo. R. Gwynn, Stuart Bros., and A. W Stone, for appellee, Joseph S. Pless.

PER CURIAM.

The motion to dismiss must be allowed. We are not advised by the record that the company (the judgment debtor) had notice or knowledge of the assignment to Stuart Bros. till after the settlement was made. Placing the assignment upon the files of the district court, and a written reference thereto on the files in this court, could not be regarded, under our laws as notice to the company of the attorney's rights through the assignment. There is nothing before us to show that either of these papers was ever seen by any officer or agent of the company, or the existence thereof mentioned to any such officer or agent, until after the settlement had been fully consummated. Therefore, as assignees Stuart Bros. are not in position to resist the motion under consideration. Freem. Judgm. § 426, and cases; Wade, Notice § 431. ' After notice to the judgment debtor of a bona fide transfer of the judgment, the rights of the assignee will be protected from any and all acts of the parties.' Stoddard v. Benton, 6 Colo. 508. Nor are Stuart Bros. aided by a reliance upon section 85 of the General Statutes, giving attorneys a lien for fees upon judgments obtained by them. While this lien attaches to the judgment at once upon its recovery, as between attorney and client, so that nothing more is necessary prior to the enforcement thereof...