Callahan v. Cowley & Riddle
| Decision Date | 16 March 1926 |
| Docket Number | 16313. |
| Citation | 245 P. 48,117 Okla. 58,1926 OK 230 |
| Parties | CALLAHAN v. COWLEY & RIDDLE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 4102, C. O. S. 1921, providing that an adverse party shall become liable to an attorney for the fee due or to become due under his contract, where such adverse party has settled or compromised the cause of action or claim wherein is involved the attorney's lien, is cumulative, and does not abrogate or limit the common-law rights of an attorney against his client upon their contract of employment. The right of the attorney to pursue such adverse party is derived solely from the terms of said statute; he having effectuated his statutory lien for fees. It is an additional concurrent remedy afforded to the attorney, in a proper case, for redress under his one cause of action against his client.
An attorney had judgment, under foregoing, for his fees in a proceeding against an adverse party wherein his client was not a party. No part of such judgment having been paid, the attorney sued, and had judgment against his client on his contract of employment. Held, such former judgment was not res judicata as a bar to the latter suit, since the attorney could pursue either or both such adverse party and his client on his one cause of action until same was extinguished by one satisfaction.
Where an attorney has perfected his lien for fees upon the cause of action, and is prevented from performing the professional duties for which he was employed, by compromise of his client with the adverse party, without notice or opportunity to the attorney to be present, the measure of the attorney's compensation, in an action against his client on the contract, is the compensation named therein. This is the rule, even though the contract was for a contingent fee since such client has prevented the contingency from taking place by such compromise.
The judgment is supported by sufficient quantum of evidence under the applicable rules, and is affirmed.
Commissioners' Opinion. Division No. 2.
Appeal from District Court, Okfuskee County; John L. Norman, Judge.
Action by Cowley & Riddle against Homer B. Callahan for attorney's fees. Judgment for plaintiffs, and defendant appeals. Affirmed.
White & Woods, of Okemah, for plaintiff in error.
Phillips Douglass & Duling, of Okemah, and Cowley & Riddle, of Okmulgee, for defendants in error.
Parties will be referred to as they appeared in the trial court inverse to their order here. On June 29, 1922, plaintiffs Cowley & Riddle, attorneys, entered into a written contract with defendant for contingent fee for performing legal services in canceling an oil and gas lease held by Turman Oil Company on his land. Accordingly, plaintiffs commenced such action on certain grounds alleged, complying with the statutes for perfecting their lien. On the trial of the cause, plaintiffs discovered that defendant had effected a compromise of his cause of action against said oil company without notice or opportunity to them to be present. Such settlement validated and confirmed the lease in said oil company, thus abating such action. Thereupon plaintiffs filed a motion in said action for judgment against Turman Oil Company for their fees, and recovered judgment for $1,000, their client, the defendant, not being a party thereto. No part of said judgment having been paid, plaintiffs filed the instant action against defendant on their said contract of employment, claiming $2,000. Defendant alleged and proved, among other things, such former judgment procured so as aforesaid against said oil company as res judicata. From a judgment in favor of plaintiffs for $1,000, defendant appeals. The principal assignment and the only error properly presented and argued involves said defense.
1. Section 4100, C. O. S. 1921, inter alia, provides that an attorney shall have a lien upon his client's cause of action or counterclaim and the procedure for making same effective; that no settlement between the parties, without the approval of the attorney, shall affect or destroy such lien. In the event of such settlement, the remedy and the measure of the attorney's recovery against his client is fixed-not by this or other sections of the lien law-but otherwise by law hereinafter applied to the facts of the instant case. Section 4101, Id., legalizes a contingent fee based on the cause of action or claim, fixes the quantum thereof, and provides that no compromise or settlement entered into by the client without the attorney's consent shall affect or abrogate the lien. Section 4102, Id., provides that, should the party to an action or proposed action, whose interest is adverse to the client contracting with an attorney, settle or compromise the cause of action or claim, wherein is involved any lien, as mentioned in the preceding section, such adverse party shall thereupon become liable to such attorney for the fee due him or to become due him under his contract of employment. Thus, the purpose of...
To continue reading
Request your trial