Casey v. Squire W. March

• Decision Date: 30 April 1867
• Citation: 30 Tex. 180
• Parties: MARTIN CASEY v. SQUIRE W. MARCH.
• Court: Texas Supreme Court

30 Tex. 180

MARTIN CASEY

v.SQUIRE W. MARCH.

Supreme Court of Texas.

April, 1867.

An attorney at law has a lien upon the papers and documents received from his client, and upon money collected for him in the course of his profession, to secure and pay himself for the fees and disbursements made by him on account of such claims, and to compensate himself for his services in the collection; but this lien, like that of a factor or mechanic, rests upon possession, and cannot vest until possession can be obtained. Pas. Dig. art. 172, note 271; 14 Tex. 457.

The lien of an attorney for his services does not extend to a judgment on the money before it shall have been collected by him. 6 Tex. 431.

Where the attorney had obtained judgment for his clients on notes placed in his hands for collection, and the defendants were served with garnishments, and the matter took the form of an injunction suit, and the attorney intervened, and asked a judgment for his fees, to be taken out of the judgments, the motion was correctly denied.

APPEAL from Panola. The case was tried before Hon. M. D. ECTOR, one of the district judges.

The record of this case is a statement of facts made up under the act of 5th February, 1858, further regulating proceedings in the district court. Pas. Dig. art. 1516. The substance of the statement is as follows:

Squire W. March brought suit against Richard S. Van Wey, in the district court of Panola county, and obtained judgment for a large amount in damages. Afterwards, De Witt C. Van Wey, son of Richard S. Van Wey, employed the appellant to collect several promissory notes in his own name, which notes were payable to R. S. Van Wey, the father of De Witt C. Van Wey, and to the wife of R. S. Van Wey. One of the notes was made by James E. Smith, and the others by the Barrys. The appellant, as the attorney of De Witt C. Van Wey, obtained a judgment in his favor against Smith, in the district court of Rusk county, which judgment was enjoined by Smith, because, as he alleged, he had been served with a writ of garnishment by Squire W. March, to answer what he owed R. S. Van Wey. The injunction was dissolved, and judgment obtained by appellant, against Smith and the sureties on the injunction bond, in favor of De Witt C. Van Wey. The appellant recovered judgments in the district court of Panola county, against the Barrys, in favor of De Witt C. Van Wey. Squire W. March enjoined De Witt C. Van Wey from collecting those judgments, and made Smith and his sureties and the Barrys parties to the suit, alleging that the transfer of the notes by R. S. Van Wey to De Witt C. Van Wey was fraudulent, and that De Witt C. Van Wey was implicated in that fraud. At the December term, 1866, of the district court of Panola county, the injunction suit was tried; judgment in favor of March, the judgments transferred to him, and the injunction perpetuated against De Witt C. Van Wey. The appellant filed his motion to have his fees (ten per cent. on the amount of the judgments) set apart to him. It was admitted that the appellant's services as attorney were worth ten per cent. on the amount of the judgments obtained by him, and that he had no knowledge of any fraud between the Van Weys. Judgment final on the motion was entered against the appellant, that he take nothing, etc. The cause had been submitted to the court and a jury waived. From this judgment the appellant prayed an appeal, and assigned for error, that the judgment was contrary to law and the evidence. The question is, has the attorney, under the above-stated case, a lien on the judgments obtained by him?

Martin Casey, for himself. In Fowler v. Merrill, 8 Tex. 153, the lien of the attorney was taken for granted, no discussion having taken place on that point. In Barker v. St. Quintain, 3 Mees. & W. 440, it is decided, that the attorney may apply to the equitable interposition of the court to have his lien on judgments obtained by him enforced. The lien was admitted, and the question in that case was as to the mode of enforcing that lien. In Brast v. Koon, 4 Cow. 416, the court treated the attorney's lien in the nature of an assignment, and decided that the attorney was as much entitled to the interposition of the court as an assignee. Martin v. Hawks, 15 Johns. 405, was quoted at length.

In Sexton et al. v. Pike, 8 Eng.; 14 Ark. 193, an attorney recovered his fees from the assignee of the plaintiff who had employed him. The court decided that he had a lien on the judgment recovered by him in the hands of the assignee. In Wilkins v. Rotterman, 4 Barb. 47, the same principle was decided. Also in Creighton v. Ingersoll, 20 Barb. 561.

This case must be treated as if Richard S. Van Wey had employed the appellant to sue on the notes, the judgments on which were transferred in the injunction suit to Squire W. March; for the result is the same to March, R. S. Van Wey, and the appellant. The appellant innocently receives promissory notes, payable to A B or bearer, and recovers judgments on them. The notes are, prima facie, the property of him from whom he receives them. Those judgments are appropriated to the creditor of his client by the order of the court. All the parties are in court, and the fund is under the control of the court. Then, how appropriate is the language of the court in Creighton v. Ingersoll, quoted above: “That none has a better right to it than the attorney by whose exertion the fund was created, and that the court should dispose of it to those best entitled to it.”

It is the custom of attorneys to take promissory notes for collection, looking to the...