Carter v. McPherson

• Decision Date: 11 January 1919
• Docket Number: 21,807
• Parties: L. O. CARTER, Appellee, v. MARY E. MCPHERSON et al. (THE KANSAS CITY RAILWAYS COMPANY, Appellant)
• Court: Kansas Supreme Court

177 P. 533

104 Kan. 59

L. O. CARTER, Appellee, v. MARY E. MCPHERSON et al. (THE KANSAS CITY RAILWAYS COMPANY, Appellant)

No. 21,807

Supreme Court of Kansas

January 11, 1919

Decided January, 1919.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. ATTORNEY'S LIEN--Construction of Statutes. Section 484 of the General Statutes of 1915, amending section 8 of chapter 11 of the General Statutes of 1868, authorizes an attorney's lien on money due the attorney's client and in the hands of the adverse party, in any "matter" in which the attorney was employed, as well as in any action or proceeding, the word "matter" in this connection meaning business or affair.

2. SAME--Sufficient Notice of Lien. Notice of an attorney's lien, duly served, is adequate for the purpose, if it give information sufficiently definite and certain to enable the party served to protect himself in dealing with the attorney's client.

3. SAME--A notice of attorney's lien considered, and held to be sufficient.

4. SAME--Suit Dismissed and Settled by Plaintiff--Lien Not Abated--Contract Contingent Fee Recoverable--Settlement Contract Prima Facie Evidence of Amount. In an action for damages for personal injury, the attorney for the plaintiff served notice on the defendant of an attorney's lien. Afterwards the plaintiff dismissed the action, without the attorney's knowledge or consent, and without cause for discharge on his part, and, through another attorney, commenced a second suit on the same cause of action. This suit was settled by the plaintiff for a sum of money which she received pursuant to the terms of a written contract of settlement with the defendant. The attorney claiming a lien had a contract with the plaintiff for a percentage of the amount recovered, by suit or by compromise, as his compensation. Held, the dismissal of the first suit did not abate the lien; the attorney's contract fixed the amount of his compensation, and he was not relegated to recovery on quantum meruit; and the contract of settlement established, prima facie, the amount of money due the plaintiff from the defendant.

O. L. Miller, C. A. Miller, and R. J. Higgins, all of Kansas City, for the appellant.

David F. Carson, and L. O. Carter, both of Kansas City, for the appellee.

OPINION

BURCH, J.:

The action was one to enforce an attorney's lien. The plaintiff recovered, and the Kansas City Railways Company, a substituted defendant, appeals.

On July 6, 1914, the plaintiff was employed by Mary E. McPherson to collect damages for personal injuries which she sustained in an accident on the Metropolitan Street Railway, operated by the receivers and subsequently purchased by the appellant. The plaintiff's compensation was fixed at a percentage of the amount recovered, either by suit or by compromise. On July 7, the plaintiff commenced an action in the district court of Wyandotte county to accomplish the purpose of his employment, and on July 8 served notice of an attorney's lien, which reads as follows:

"In the District Court of Wyandotte County, Kansas, Third Division.

Mary E. McPherson, Plaintiff, v. Ford F. Harvey et al., Defendants.

No. 2316-A.

NOTICE OF ATTORNEY'S LIEN.

"To the defendants and their attorneys of record:

"You and each of you will hereby take notice that the undersigned, L. O. Carter, as attorney at law, has and claims a lien for a general balance of compensation as such attorney at law for professional services rendered by him for the above-named plaintiff, Mary E. McPherson, upon all moneys or property now in your hands belonging to the said Mary E. McPherson, plaintiff, and upon all moneys or property due or that may be adjudged due said plaintiff, in the above-entitled cause after due proceedings therein, or that which you may offer to pay plaintiff in settlement or compromise of the above-entitled suit.

"The amount which the undersigned claims as a general balance of compensation, and for which he claims a lien as aforesaid, is two thousand five hundred ($ 2,500.00) dollars.

"L. O. CARTER,

"Attorney for Plaintiff."

Afterwards the plaintiff interviewed his client, interviewed witnesses, consulted physicians, caused X-ray pictures of his client's injuries to be taken for use as evidence, and in other respects performed professional services in connection with the case. On January 7, 1915, the plaintiff's client dismissed her action, without the plaintiff's knowledge or consent. In September, 1914, the client, through another attorney, brought suit against the same defendants, on the same cause of action, in the circuit court of Jackson county, Missouri. In March, 1915, the plaintiff served another notice of lien on the attorney for the defendants in the Missouri action. In April, 1915, the client settled her case for a sum of money satisfactory to herself, which she received. The plaintiff sued for his percentage of the amount.

The defendant says the dismissal by the plaintiff's client of the suit brought by the plaintiff terminated the action and the matter with which the plaintiff was connected, and abated his lien. If this were true, the statute would be reduced to waste white paper.

Under the statute of 1868, an attorney's lien was confined to money and papers of the client in the attorney's hands, and to money due his client in the hands of the adverse party in any action or proceeding. The statute did not specify the kind of notice necessary to perfect a lien, or the manner of serving notice. (Gen. Stat. 1868, ch. 11, § 8.) In 1905 the statute was amended. The kind of notice and the manner of serving it were specified, and the word "matter" was inserted, so that an attorney may now have a lien from the time of giving notice, on money due his client and in the hands of the adverse party, "in any matter, action or proceeding in which the attorney was employed." (Gen. Stat. 1915, § 484.) The word "matter" means, in this connection, business, or affair, and the purpose was to enlarge the lien to secure attorney fees without regard to whether or not action or proceeding were commenced.

In this instance, the matter which was the subject of the Wyandotte county suit--the claim for damages for personal injuries--existed from the time the injuries were sustained until the plaintiff's client was finally compensated. The plaintiff became connected with that matter when he was employed as an attorney to realize on the claim, and when he perfected his lien he could not be disconnected from it, so far as his lien was concerned, by anything his client or his client's adversary might do. In the absence of release, waiver, or forfeiture on his part, he could be disconnected by nothing except satisfaction of his lien.

The notice of July 8, printed above, is attacked. The statute gives a lien on "money due." In K. P. Rly. Co. v. Thacher, 17 Kan. 92, it was held, construing the statute of 1868, that the lien may be created when the claim is one for damages for personal injuries, unliquidated and undetermined by verdict or judgment. In the opinion it was said:

"This gives a lien not simply upon a judgment, but upon 'money due.' It does not specify for what the money must be due nor limit the lien to any particular class of liability or form...