Colorado State Bank of Durango v. Davidson

• Decision Date: 11 November 1895
• Citation: 7 Colo.App. 91,42 P. 687
• Parties: COLORADO STATE BANK OF DURANGO v. DAVIDSON et al.
• Court: Colorado Court of Appeals

42 P. 687

7 Colo.App. 91

COLORADO STATE BANK OF DURANGO v. DAVIDSON et al.

Court of Appeals of Colorado

November 11, 1895

Appeal from district court, La Plata county.

Action by W.C. Davidson and C.A. Pike, partners, doing business as Davidson & Pike, against the Colorado State Bank of Durango and others, to enforce an attorney's lien. Judgment was rendered for plaintiffs, and defendant the Colorado State Bank of Durango appeals. Reversed.

Galbreath & Searcy and C.E. & F. Herrington, for appellant.

C.A. Pike, W.C. Davidson, and Geo. T. Summer for appellees.

THOMSON J.

This action was brought to enforce an attorney's lien upon a judgment. In April, 1892, M.R. Shields recovered judgment against the board of county commissioners of La Plata county for $5,266.38. The plaintiffs, Davidson & Pike, a firm of lawyers, were the attorneys of Shields, and, in his behalf instituted and conducted the proceedings which resulted in the judgment. On the 13th day of May, 1892, the plaintiffs filed the following paper with the clerk of the district court: "State of Colorado, County of La Plata--ss.: In the District Court. M.R. Shields vs. The Board of County Commissioners of La Plata County. Atty. Lien. We, the undersigned, attorneys and attorneys of record in the above-entitled cause, hereby claim and file this, our lien for services as attorneys in the sum of $1,025, against the judgment entered of record April 11th, 1892, in this case. Davidson & Pike, Attys." At the same time the following entry was made upon the margin upon the record of the judgment: "Attorney's lien filed by Davidson & Pike, May 13th, 1892." After this entry was made, and on the same day, Shields assigned the judgment to James W. Veitch, who immediately assigned it to the Colorado State Bank of Durango. Both assignments were made upon the same day, and were in writing, upon the record of the judgment. On May 26, 1892, the plaintiffs filed the following additional paper with the clerk: "To the Hon. Commissioners of La Plata County--Gentlemen: You are hereby notified that we have claimed and filed a lien upon the judgment heretofore obtained by M.R. Shields against the county of La Plata in the district court of said county, at the March term thereof. The said claim amounts to $1,025.00, and is for fees due from said Shields to us. And you will please reserve the above amount in any settlement of said judgment; otherwise we shall hold you liable therefor. Respectfully, Davidson & Pike." This suit was commenced on the 14th day of February, 1893, in the county court of La Plata county, against M.R. Shields, J.W. Veitch, and the Colorado State Bank of Durango. All the defendants were duly served with summons, and appeared to the action. After a demurrer had been sustained to the complaint on the ground of a misjoinder of parties defendant, the plaintiffs dismissed the action as to the defendant Shields. The result in the county court having been adverse to the plaintiffs, they appealed the case to the district court of the same county, where, after sundry rulings and amendments, an amended complaint was filed, making M.R. Shields, the Colorado State Bank of Durango, and the board of county commissioners of La Plata county defendants. Summons was thereupon issued against Shields and the board of commissioners, which was served upon the board, but not upon Shields. Shields made no appearance in the cause. The amended complaint set forth the facts of the recovery of the judgment, the filing of the claim of lien, its entry upon the margin of the judgment, the assignments by Shields to Veitch, and by him to the bank; averred that the plaintiffs gave due and proper notice of their lien to the board of commissioners; that Veitch paid no consideration for the judgment, but was the agent of the bank; that the bank took the assignment with full knowledge of the plaintiffs' lien; that the board of commissioners afterwards satisfied the judgment by payment of its amount to the bank; and prayed that the amount of the plaintiffs' claim be adjudged a lien upon the judgment, and that the bank be decreed to account for and pay to the plaintiffs the full sum claimed. The answer of the bank denied each and every allegation of the complaint, and averred the sale and assignment of the judgment to it for a valuable consideration. The board of commissioners made no answer. Upon the final hearing, a decree was rendered according to the prayer of the complaint, from which the defendant bank has prosecuted an appeal to this court.

The only authority for a proceeding of this kind is section 85 of the General Statutes. That section reads as follows "All attorneys and counsellors at law shall have a lien upon any money or property in their hands, or upon any judgment they may...