Cohen v. Goldberger; Cramer Kramer & Bettman

• Decision Date: 04 December 1923
• Docket Number: 17707
• Citation: 109 Ohio St. 22,141 N.E. 656
• Parties: Cohen v. Goldberger Et Al.; Cramer v. Kramer & Bettman Et Al.
• Court: Ohio Supreme Court

141 N.E. 656

109 Ohio St. 22

Cohen v. Goldberger Et Al.; Cramer v. Kramer & Bettman Et Al.

No. 17707

Supreme Court of Ohio

December 4, 1923

Attorney and client - Fees as Lien upon judgment - Priorities - Attorney fees, costs, general creditors and partnership claims.

1.The right of an attorney to payment of fees earned in the prosecution of litigation to judgment, though usually de- nominated a lien, rests on the equity of such attorney to be paid out of the judgment by him obtained, and is upheld on the theory that his services and skill created the fund.

2.Such claim, together with costs and other expenses of procuring the judgment, has priority over those of general creditors of the plaintiff, and, under the facts In this case, is superior to those of general creditors of a partnership of which plaintiff was a member, who seek to obtain the proceeds of such judgment as assets of the partnership.

Action was brought in the superior court of Cincinnati by IsadOre M Cohen against Joseph Goldberger and Henry W. Morgenthaler for an accounting of certain assets of a partnership consisting of Goldberger and Cohen. In that action it was claimed, and was found to be a fact, that Goldberger had transferred to Morgenthaler a certain claim of the firm of Goldberger & Cohen against the United States Steel Products Company, for commissions earned under a contract with that company.

Upon trial in the superior court, judgment was rendered in favor of the plaintiff, and upon trial on appeal in the Court of Appeals, a like judgment was rendered for substantially the same amount, which was later affirmed in this court; the opinion appearing in Morgenthaler v. Cohen 103 Ohio St. 328, 132 N. E., 730. Thereafter, and before the judgment was paid, the law firms of Kramer & Bettman and Cobb, Howard & Bailey filed their motion in the Court of Appeals, wherein such judgment had been rendered, in which they stated that they were attorneys for the plaintiff, whO had agreed to pay them for their services one-half of the amount which might be recovered, and asked that the same be allOwed as a lien upon said judgment. Cohen by answer admitted the rendition of the services by the attorneys as claimed. The art of Appeals ordered the amount of the judgment and interest paid to the clerk. Thereafter Nelson B. Cramer, upon leave of court, filed an intervening petition, wherein he claimed to be a creditor of the partnership of Goldberger & Cohen, and claimed the entire amount of such judgment as partnership assets. Thereafter Kramer & Bettman and Cobb, Howard & Bailey, upon leave of court, filed an intervening petition, wherein they averred their employment by COhen to prosecute the action heretofore referred to, and set forth the result of the litigation in each court as heretofore detailed, and further averred that they acted as counsel for Cohen throughOut such litigation, under a contract wherein it is prOvided that they were to receive for their services an undivided one-half interest in the amount recovered as a re- sult of the litigation, and asserted that they have a lien upon the judgment rendered in such cause, and seek payment thereof with accrued interest out of the moneys paid into court in satisfaction of said judgment.

A demurrer of Nelson B. Cramer to that intervening petition was overruled, and thereafter an answer was filed by Nelson B. Cramer, wherein he admitted the prosecution of the claim of Cohen against Goldberger and Morgenthaler, and the rendition of the judgment as heretofore stated, but "for want of information" denied the employment of Kramer & Bettman and Cobb, Howard & Bailey, or the rendition of the services by them under the contract set forth, and therefore denied any interest in or lien upon such judgment.

Upon the issue thus made the cause was tried in the Court of Appeals, which court fOund in favor of Kramer & Bettman and Cobb, Howard & Bailey on their intervening petition, and further found that there was due them, out of moneys theretofore Ordered paid to the clerk of said court, the sum of $4,144.43, being one-half of the judgment recovered in favor of Cohen. A motion for a new trial having been overruled, a petition in error was filed in this court to procure a reversal of that judgment.

Mr. Julius R. Samuels and Mr. S. A. Headley, for plaintiff in error.

Messrs. Cobb, Howard & Bailey and Messrs. Kramer & Bettman, for defendants in error.

MATTHIAS J.

In the case out of which the issues now before us arise (Morgenthaler v. Cohen, 103 Ohio St. 328 132 N. E., 730), it was held...