Cones v. Brooks

• Decision Date: 08 November 1900
• Citation: 60 Neb. 698,84 N.W. 85
• Parties: CONES v. BROOKS.
• Court: Nebraska Supreme Court

60 Neb. 698

84 N.W. 85

CONES

v.BROOKS.

Supreme Court of Nebraska.

Nov. 8, 1900.

Syllabus by the Court.

1. An attorney has a general or retaining lien upon all papers, books, documents, or money of his client coming into his hands in the course of his professional employment.

2. Such lien depends upon possession, and attaches only to papers, books, documents, or money in the hands of the attorney, and it is effective without notice to any one.

3. An attorney cannot enforce by action his general or retaining lien upon a note, bond, or other obligation to pay money.

4. An attorney has a charging or specific lien upon money in the hands of an adverse party to an action or proceeding. Such lien is not perfected until notice has been given to the party in possession of the fund.

5. The notice of a charging or specific lien of an attorney need not be in writing, or placed among the files of the case. Any notice that the claim is made and that it will be asserted is sufficient.

6. Lavender v. Atkins, 29 N. W. 467, 20 Neb. 206,Elliott v. Atkins, 42 N. W. 403, 26 Neb. 403, and Sheedy v. McMurtry, 63 N. W. 21, 44 Neb. 499, explained and distinguished.

7. Petition in suit to enforce an attorney's lien examined, and found to state facts sufficient to support the action.

Error to district court, Pierce county; Robinson, Judge.

Action by Douglas Cones against George A. Brooks. Judgment for plaintiff. Defendant brings error. Reversed.Benj. Lindsay, for plaintiff in error.

J. H. Berryman and W. A. Meserve, for defendant in error.

SULLIVAN, J.

Douglas Cones, a practicing attorney of Pierce county, instituted this action against George A. Brooks to obtain satisfaction of a claim for professional services. The petition is in three counts. The first charges that the plaintiff rendered services to Breyer, Roepke, and Ahlmann, trustees, in an action brought by them against the defendant herein upon a promissory note. The second states that the trustees assigned their cause of action to Carl Korth, and that the plaintiff continued as attorney in the case, and rendered valuable services therein. The third asserts an attorney's lien for a general balance upon the note in suit. The district court sustained a general demurrer to the petition, and, the plaintiff having declined to plead further, judgment was rendered against him. We learn from the briefs of counsel that the decision in favor of defendant resulted from the conclusion of the trial judge that the plaintiff had failed to give due notice of his lien. This being the only question argued in this court, we shall not consider any other.

Section 8, c. 7, Comp. St., is as follows: “An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party.” The statute, which is declaratory of the common law, gives an attorney a lien upon all papers, books, and documents of his client which have come into his possession in the course of his professional employment. It also gives him a like lien upon any money in his hands belonging to his client. These liens are known as general or retaining liens. They depend upon possession, and do not attach to anything not in the hands of the attorney. They are complete and effective without notice to any one. Sanders v. Seelye, 128 Ill. 631, 21 N. E. 601;Pierce v. Underwood, 103 Mich. 62, 61 N. W. 344;Hurlbert v. Brigham, 56 Vt. 368;Diehl v. Friester, 37 Ohio St. 473;Ward v. Craig, 87 N. Y. 550. An attorney cannot, however, enforce by action a general lien upon a note, bond, or other obligation for the payment of money, because the lien attaches only to the evidence of the debt, and not to the money in the hands of the debtor. It amounts to a mere right to retain possession of the papers, as against the client, until the attorney is fully paid. In re Wilson (D. C.) 12 Fed. 235;McDonald v. Railroad Co., 93 Tenn. 281, 24 S. W. 252;Tillman v. Reynolds, 48 Ala. 365; 3 Am. & Eng. Enc. Law (2d Ed.) 464; 13 Enc. Pl. & Prac. 144. The statutory and common-law lien upon money in the hands of the adverse party in an action or proceeding in which the attorney was employed is a charging or...