Brown S. v. Erwin S.

• Decision Date: 27 September 1921
• Docket Number: 4116, 4116-A.
• Citation: 89 W.Va. 113
• Parties: Tina Y. Brown et als. v. Rule Edna Erwin et als.
• Court: West Virginia Supreme Court

89 W.Va. 113

Tina Y. Brown et als.

v.Rule Edna Erwin et als.

4116, 4116-A.

Supreme Court of Appeals of West Virginia.

Submitted September 20, 1921.

Decided September 27, 1921.

1. Equity Notwithstanding Return of Commissioner's Report

and Readiness for Hearing, Defendant in Default May File Answer.

Notwithstanding the return of a commissioner's report in a chancery cause and readiness of the cause for hearing thereon, a defendant in default may file his answer to the hill, (p. 119).

2. Same Where Answer is Limited to Collateral Branch, Pro-

ceeding May Go to Decree in Main Cause and Matter in Answer be Continued.

If an answer so filed is not defensive of the main cause of action and is limited in its defense to a collateral branch thereof, susceptible of postponement without interference with or delay of a, decree in the main cause, such decree may be entered and the matter arising upon the answer continued for a later hearing thereof, (p. 119).

3. Same Ansicer to Bill to Enforce Judgment Lien Impeaching

Claim of Attorney's Lien. Held Not a Cross-Bill Requiring or Authorizing Special Reply.

An answer to allegations in a bill for enforcement of a judgment lien, impeaching an asserted claim of an attorney's lien on such judgment and denying the existence thereof, responsive to such allegations and contradictory thereof, is not a cross-bill nor an answer in the nature thereof, requiring or authorizing a special reply thereto, (p. 119).

4. Appeal and Error Bill Based on Full Hearing of Evidence

Before Commissioner Will Not be Reversed-for Lack of a General Replication.

A decree based upon a full and fair heating upon evidence taken before a commissioner upon a proper reference, will not be reversed for lack of a general replication to an answer, (p. 120).

5. Attorney and Client Attorney Obtaining Decree Has Lien on

Fund Arising from its Enforcement by Another Attorney.

An attorney by whom a judgment or decree has been obtained has an attorney's lien upon a fund arising from the enforcement of the lien of such judgment or decree against the land of the debtor, in a suit prosecuted for the plaintiff, by another attorney, (p. 120).

6. Infants Attorney May Have Lien Upon Decree for Fee Al-

though Creditor is an Infant.

It is immaterial in such case, that the creditor is an infant suing by his next friend, (p. 121).

7. Same Attorney Paying Costs and Expenses is Subrogated to

Right of Next Friend to Reimbursement, if Acting in Good Faith.

A next friend incurring costs and expenses in the prosecution of a suit is entitled to reimbursement from the infant, and, in equity, the attorney paying such costs and expenses, is subrogated to the right of the next friend against the infant, and may have a decree against the fund, for his services and such costs and expenses, provided the next friend has act ed in good faith and with reasonable caution, in efforts to protect the interests of the infant, (p. 121).

8. Attorney and Client Attorney's Failure to Obtain Specific

Relief Sought and Taking Alternative Relief Do Not Preclude His Lien for Fee.

Failure of an attorney to obtain the relief specifically sought in a suit in equity and necessity of his taking alternative relief, under the prayer for general relief, do not preclude right in him to a lien on the decree actually obtained, (p. 121).

9. Same An Attorney Has a Prior Lien on Fund Arising From

Enforcement of Decree Procured by a Subsequently Employed Attorney Unless Expressly or Impliedly Assenting Otherwise.

An attorney by whom a judgment or decree was obtained for his client has a lien upon a fund arising from enforcement of such judgment or decree' against the land of the debtor, by another attorney employed by his client, prior and superior to the lien thereon of such subsequently employed attorney, unless he has expressly or impliedly assented to such subsequent employment or, in some way, relinquished his right further to represent his client in the matter, or, by negligence or other misconduct warranting his discharge, has lost it. p. 122).

Appeal from Circuit Court, Doddridge County.

Suit for enforcement of the lien of a decree by Tina V. Brown and others against Ruie Edna Erwin and others, and from a decree in favor of the plaintiffs the defendants appeal.

Affirmed.

L. W. Chapman, for appellants.

J. V. Blair, J. V. Blair, Jr., and J. Ramsey, for appellees.

poffenbarger, 3 (mx ik:

The subject matter of the controversy brought up by this appeal is a claim of a lien for attorney's fees and expenses, upon a fund brought into the hands of the court below, through a sale of real estate by one of its special commissioners. Originally, it was a claim of a lien upon a decree obtained by one attorney, having the dignity, force and effect of a judgment, and now upon a fund realized upon the decree by a sale of the property upon which it was a lien, in a subsequent suit prosecuted by another attorney, for some of the original plaintiffs, who also claims a lien upon part of it for his services.

This cause is predicated upon the result of the decision in Hansford v. Tate, 61 W. Va 207, prosecuted for the plaintiffs by J. V. Blair, as attorney, and closely follows it in order. Its primary object, annullment of a judicial sale, on the ground of fraud in the procurement thereof, having failed in respect of the right of the purchaser and the decrees in the suit in which the sale had been made, Freeman v. Hansford, having been set aside only in so far as vacation thereof did not affect the title of the purchaser, Tate, a right to have restitution of the proceeds of the sale arose in favor of the plaintiffs, which the trial court and this court both recognized. That cause was disposed of in this court, January 15, 1907, but no further steps therein are here shown to have been taken until July 16, 1908. On that date, a personal decree was entered therein, in favor of the plaintiffs, against A. S. Hansford and Joseph Freeman, but, as it was disclosed that Hansford had received all of the money obtained by the sale of the land, it was provided that nothing should be collected from Freeman, until after exhaustion of all of Hansford's property. This being a final decree, as to the liability of Hansford and Freeman, there were no doubt preliminary proceedings between the date of the remand of the cause and the entry thereof, which have not been brought up.

In the mean time, March 11, 1908, two of the plaintiffs, Tina V. Brown and Essie M. McDonald, are alleged to have entered into a contract with L. W. Chapman, an attorney, by which they employed him to collect any money due them from Freeman, Hansford, Harvey Smith, next friend in the suit against Tate and others, and J. Y. Blair, an attorney in that suit, and obligated themselves to pay him one-half of any sum recovered. These two of the six original plaintiffs, all of whom were infants, thus separated themselves from the other four. At the elate of this contract, Tina Y. Brown had become of age and married one W. A. Brown, Essie M. McDonald, though still under age, was also married. In her deposition, taken before the commissioner to whom this cause was first referred, Tina Y. Brown swore her husband had made this contract and signed her name to it without her knowledge or consent. He was also put into this suit as the next friend of Essie M. McDonald.

The object of this suit was enforcement of the lien of the decree for $1,730.00 against Freeman and Hansford, obtained by Blair for the Hansford children in their suit against Tate, Freeman, Hansford and others, by way of restitution of the proceeds of the sale of their land, in the suit brought by Freeman against Hansford, as for enforcement of a vendor's lien, in pursuance of a fraudulent agreement between Hansford and Freeman. Tina V. Brown and Essie M. McDonald, the latter suing by her next friend, W. A. Brown, are the plaintiffs, and all the other beneficiaries of that decree, as well as Freeman, Hansford, Blair and the Carter Oil Co. are defendants. Upon sufficient allegations, the bill asserted a lien of the decree upon two small tracts of land owned by Hansford and sought enforcement thereof. In connection with this relief, it assailed Blair's claim of a lien upon that decree, charging that Blair had been employed by Harvey Smith as the next friend of the plaintiffs in the suit in which the decree was obtained, and had agreed to look to him for his fees and compensation, and had also assumed payment of the costs.

On a date not disclosed by the record, Blair interposed a demurrer to the bill. No other defense seems to have been made until after the cause was referred to a commissioner, for ascertainment and report of the facts usually requisite for a decree in such causes. The commissioner reported the lien of the decree upon said tracts of land and upon certain town lots in Harrison County, W. Va., Blair having had abstracts thereof recorded in both Doddridge and Harrison counties. He also divided the lien among the six owners thereof, giving each $380.87, and allowed Chapman a lien against each of the interests of Tina V. Brown and Essie M. McDonald, for the sum of $190.43, as attorney's fees, by virtue of his alleged contract with them.

An order entered July 17, 1914, recited adjudication of Blair's lien, a second reference of the cause to another com missioner to ascertain the amount thereof, and omission of actual entry of such order, and directed the same to be entered nunc pro tunc, as of the last day of the March term, 1914. By the same order, the court sustained an objection to the filing of a special reply to Blair's answer, tendered by the plaintiffs, and rejected the same.

The commissioner's report was filed in the clerk's office of the court, November 25, 1913. According to a recital in an order entered in the cause, J. V. Blair filed his answer to the bill, December 1, 1913. After it was filed, the cause came on to be heard upon the report of the commissioner, and...