Brazil v. City of Chicago

• Decision Date: 24 June 1942
• Docket Number: Gen. No. 42064.
• Citation: 43 N.E.2d 212,315 Ill.App. 436
• Parties: BRAZIL v. CITY OF CHICAGO. HICKEY v. CITY OF CHICAGO.
• Court: United States Appellate Court of Illinois

315 Ill.App. 436

43 N.E.2d 212

BRAZIL

v.CITY OF CHICAGO.

HICKEY

v.CITY OF CHICAGO.

Gen. No. 42064.

Appellate Court of Illinois, First District, Third Division.

June 24, 1942.

Appeal from Circuit Court, Cook County; Harry M. Fisher, Judge.

Personal injury action by Theresa A. Brazil against the City of Chicago wherein Hattie Hickey, executrix of the will of Francis A. Hickey, deceased, filed a petition to enforce an attorney's lien. From a judgment for the petitioner, the City of Chicago appeals.

Reversed. Barnet Hodes, Corp. Counsel, of Chicago, James A. Velde, Carl H. Lundquist, and Alphonse Cerza, all of Chicago, for appellant.

Monahan & Monahan and A. E. Minetor, all of Chicago (A. E. Minetor and Reno H. Brindley, both of Chicago, of counsel), for appellee.

HEBEL, Justice.

Hattie Hickey, executrix of the will of Francis A. Hickey, deceased, filed a petition to enforce an attorney's lien alleged to exist as to a judgment against the City of Chicago. The hearing on the petition was had before the court without a jury, and judgment was entered by the trial court in favor of the petitioner and against the City of Chicago in the sum of $1,553.19 and costs, from which judgment defendant appeals.

The facts, as suggested by the briefs filed, are that Theresa A. Brazil employed an attorney, Thomas J. Hickey, to represent her in connection with a claim arising from an injury to her on September 7, 1929 on a public street in the City of Chicago. Hickey's associate, John S. Hall, prepared a document entitled “Notice of Attorneys' Lien, Under the Laws of 1909”, which was directed to the City of Chicago and stated the facts about the employment of Hickey by Theresa A. Brazil, including an agreement to pay a fee of one-third of the amount recovered, and was signed by Hickey. John S. Hall, a witness, testified that on February 14, 1930 he “served the notice on the City of Chicago.” William D. Saltiel was then the City Attorney. The receipt for the notice was signed in the name of Saltiel by “one of the assistants in his office, Frietberg, or some name like that”. The form of receipt attached to the notice introduced in evidence is signed “William D. Saltiel--E. F.” Hall testified that he left with the assistant a copy of the notice.

On April 17, 1930, Theresa A. Brazil filed suit against the City of Chicago. On May 2, 1931 she secured a judgment against the City of Chicago in the sum of $3,500 and costs. On October 20, 1937 the City of Chicago paid her the sum of $4,659.58, which constituted the full amount of the judgment plus costs and interest. In 1932 Thomas J. Hickey died. Francis A. Hickey, sole heir and legatee of Thomas J. Hickey, deceased, and executrix of his will, died in 1939 and the petitioner Hattie Hickey, was appointed executrix of the last will and testament of Francis A. Hickey. On July 8, 1940 an amended petition was filed to enforce the alleged attorney's lien. An answer was filed by the City, alleging that the records of the office of the City Comptroller, who pays judgments against the city, do not show that the alleged notice of attorney's lien had ever been filed or served. Attached to the answer is an affidavit of A. M. Smietanka (successor of William D. Saltiel) to the effect that the records of his office contained no copy or record of a notice of attorney's lien served on the city attorney in this matter. Judgment was entered in favor of the petitioner and against the City of Chicago in the sum of $1,553.19 and costs, being one-third of the amount paid Theresa A. Brazil.

Petitioner seeks to establish a lien under the so-called Attorney's Lien Act, passed in 1909, Par. 14, Chap. 13, Ill.Rev.Stat.1941, which reads as follows: “§ 1. That attorneys at law shall have a lien upon all claims, demands and causes of action, including all claims for unliquidated damages, which may be placed in their hands by their clients for suit or collection, or upon which suit or action has been instituted, for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee, for the services of such attorneys rendered or to be rendered for their clients on account of such suits, claims, demands or causes of action. Provided, however, such attorneys shall serve notice in writing, which service may be made by registered mail, upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action, and such lien shall attach to any verdict, judgment or decree entered and to any money or property which may be recovered, on account of such suits, claims, demands or causes of action, from and after the time of service of the aforesaid notice. On petition filed by such attorneys or their clients any court of competent jurisdiction shall, on not less than five days' notice to the adverse party, adjudicate the rights of the parties and enforce such lien in term time or vacation. (As amended by act approved June 30, 1927. L.1927. p. 186.)”

This statute creates a lien in favor of attorneys on all claims placed in their hands for suit or collection, and requires the defendant, after due notice, to respect the lien. Standidge v. Chicago Railways Co., 254 Ill. 524, 98 N.E. 963, 40 L.R.A.,N.S., 529, Ann.Cas.1913C, 65. It is urged by defendant that it is against public policy to compel a municipality to be involved in litigation which concerns private persons. A garnishment suit will not lie against the City of Chicago. Merwin v. City of Chicago, 45 Ill. 133, 92 Am.Dec. 204. Nor will a creditor's bill, seeking to collect money due a private person from a municipality, lie against the City of Chicago and its officers. Addyston Pipe & Steel Co. v. City of Chicago, 170 Ill. 580, 48 N.E. 967,44 L.R.A. 405;Lamb v. Lamb, 256 Ill.App. 226.

The manifest purpose of the attorney's lien statute is to assist attorneys in collecting their fees. Primarily the client who hires the lawyer is liable for the services of his lawyer, and the attorney's lien statute does not change this rule. Case v. Emerson-Brantingham Co., 269 Ill. 94, 109 N.E. 671. It is urged by defendant that consequently, the statute establishes certain rights and obligations between litigants. In the case at bar a private controversy exists between petitioner, Hattie Hickey, and the plaintiff, Theresa A. Brazil. Plaintiff has not paid her attorney for services rendered although she has received full payment of the judgment that he helped her obtain. It is urged that in many cases a defendant served with an attorney's lien is compelled to participate in litigation between attorney and client as to the terms of the contract between them; and further, that if the City of Chicago should not be harassed in a garnishment suit or a creditor's bill, surely it should not become involved in this kind of controversy pertaining to purely private interests.

The petitioner replies that defendant's contention that the attorney's lien statute does not apply to the City of Chicago, receives no substantial support from the legal authorities cited in defendant's brief and argument, and states that the first three cases have to do with garnishments, while the fourth case reported in 269 Ill. 94, 109 N.E. 671, involves an attorney's lien, but contends that its application in that case is on a much different premise than it is in the case at bar.

In discussing the cases called to the attention of this court, and which we believe applicable in the instant case as to the right of the plaintiff in this action to recover under the statute in question, we have first the case of Merwin v. City of Chicago, 45 Ill. 133, 92 Am.Dec. 204. That was an action by the plaintiff to recover in a suit in attachment against the City, in which the City was summoned as a garnishee. The City, without having answered, was on motion discharged...