O'Connor v. St. Louis Transit Co.
| Decision Date | 17 October 1906 |
| Citation | 97 S.W. 150,198 Mo. 622 |
| Parties | O'CONNOR v. ST. LOUIS TRANSIT COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jesse A. McDonald Judge.
Affirmed.
George W. Easley with Boyle & Priest for appellant.
(1) There is not a single word in the title that would direct the mind to the question of making such a contract lawful. Nor is there anything in the title of the act indicating that notice in writing will create a lien, and above all there can be nothing evoked from the title to this act to show that it was the purpose of the Legislature to create a liability for making a settlement without the written consent of the attorney. The title of this bill gives no indication that contracts of the character named were to be legalized, that notice in writing was to create a lien, or that a settlement made by the defendant was to create a liability therefor. No suggestion of either of these points can be found in the title to the act. If the constitutional provision is not a dead letter, all if its purposes are defeated by allowing this act to stand under this title. Cooley's Const. Lim 141; St. Louis v. Tiefel, 42 Mo. 590; Dorsey's Appeal, 72 Pa. St. 192; In re Green, 14 Colo. 401; Brooks v. People, 14 Colo. 413. (2) In considering this question the court must bear in mind that the first section of the act of February 25, 1901, has no bearing upon the question. It depends wholly upon the construction of the second section of the act. In construing the second section it is important to determine at what time the lien attaches under that section, to what does it attach, and against whom may the lien be enforced. The language of the act which attempts to create the lien answers with a definiteness each of these questions. From the reading of the first section of the act it is evident that a passive or inchoate lien of the attorney arises from the commencement of the suit, and that it attaches and becomes a lien when the claim or demand has been reduced "to a verdict, report decision, or judgment in his client's favor." The inchoate lien embraces the client's cause of action or counterclaim, and attaches, that is, becomes an active lien upon the claim when prosecuted to a verdict, report, decision, or judgment in his client's favor. That section also with equal definiteness answers the other query as against whom the lien attaches and against whom it may be enforced. The answer is that it exists and may be enforced against any one "in whosesoever hands they may come." The lien is merely passive until called into active existence by being reduced to a sum certain by any of the aforesaid modes specified in the Attorney's Lien act. Until there has been a verdict, report, decision, or judgment in favor of the attorney's client, there is nothing tangible to which the lien can attach. Until then there is no judicial determination that there is a cause of action. After being affixed as designated by the statute, there is something tangible to which the lien can then attach. A cause of action has been found to exist. To a mere cause of action it can never attach as a lien capable of being enforced by the courts, until that cause of action has been judicially determined. The second section of the act has a two-fold purpose. It was intended to, and it does so far as the Legislature can do so, legalize contracts, which, in the absence of this statute and at common law, would be champertous. Second, it then provides for the existence of a passive or inchoate lien upon the cause of action from the time of giving notice of the suit to the defendant. The true construction of the first section of the act is that the lien when final judgment is entered relates back to the commencement of the action, and as the defendant must have had notice of that action by the commencement of the suit, no notice of the claim of the lien is necessary under the first section of the statute, but because there was no legal way by which the defendant could be notified of the employment of the attorney to prosecute the plaintiff's case, the statute provided for notice of his employment, and after judgment that would relate back to the time of the service of the notice of his employment and be the creation or passing of the passive or inchoate lien from the time of the service of such notice. The final judgment, verdict, report or decision determining the fact that the plaintiff had a cause of action and reducing the monetary value of that cause of action to a fixed sum here is necessary to the creation of the attorney's lien, under the second section of the statute as under the first. The lien upon the cause of action is given by the first section, and must be controlled by the terms of the first section, and under that section it is clear that the lien does not attach until there be a verdict, report, decision, or judgment in favor of the attorney's client. Pending the time of the commencement of the suit as fixed by the first section, or the notice required by the second section, it is equally provided that no settlement between the parties can affect the rights of the parties, whether made before or after judgment, and when the final judgment pending the cause of action is made under the first section, it relates back to the commencement of the action, and any settlement between that time and the final judgment will not affect the relations between the parties. So under the second section any settlement made between the parties between the time of the giving of the notice and final judgment shall not affect the attorney's lien. The lien referred to in the second section by the expression "attorney's lien as aforesaid" is the same lien that is given by the first section, and the whole purpose of the provisions of the second section in relation to the lien was for the purpose of protecting the attorney's rights between the time of his employment and giving to the defendant notice thereof and the commencement of the suit. After that the first section must control. As this record shows that the settlement was made after the commencement of the action and before final judgment, we are only concerned with the construction of the second section of this act. We insist that there can be no enforcement of an attorney's lien until a final judgment has been rendered in favor of the attorney's client. Up to that time there is nothing to which the lien can attach, and the rule seems settled that in cases in the condition of the one at bar, that is, where the lawyer takes employment on a contingent fee, his client may not settle the case so as to deprive him of his fee, and the only way he can urge the enforcement of his lien is to prosecute the original suit to final judgment, and enforce his lien against that judgment, in doing which he must establish the plaintiff's right to recover on the state of facts existing at the time the case was first disposed of, independent of the question of fees. Trigg v. Chambers, 56 Ga. 279; Coleman v. Ryan, 58 Ga. 132; Swift v. Register, 97 Ga. 446; Rogers v. Furse, 83 Ga. 115; Brown v. Railroad, 101 Ga. 80; O'Brien v. Railroad, 50 N.Y.S. 159; Johnson v. McCurry, 102 Ga. 471; Smelker v. Railroad (Wis.), 81 N.W. 995; Railroad v. Givens, 13 Ky. L. R. 491; Nat. Ex. Co. v. Crane (N. Y.), 60 N.E. 768. (3) The lien should have been enforced against the sum of money in the hands of the original plaintiff. Such is the direct provision of the act, that the lien shall be enforced against the proceeds thereof in whosesoever hands they may come. This record shows that they were in the original plaintiff's hands, and the lien should be enforced against that fund. The St. Louis Court of Appeals, in Yonge v. Railroad, 109 Mo.App. 235, has very much misapprehended the New York statute, the Georgia and Wisconsin statutes, and construes them quite differently from what the courts of those States do, and finally plants itself upon the broad ground that the Legislature has chosen to give a right of action simply for making the settlement. Fair dealing requires that this act shall have the construction that we maintain; that it be construed so as to rid the Attorney's Lien act of as many evils as possible; that it may not lead the members of the bar, as it has, into tempation that robs them of professional pride and makes the practice of the law in such cases mere commercialism; which has organized many law bureaus for the purpose of looking up such claims and prosecuting them on the percentage basis. This is apparent from the Yonge case, which is a fair sample of the kind. By this the lawyer loses professional pride, deprives himself of his desire to be an aid of the court in the correct administration of justice, and putting his personal interest in direct opposition to his professional duties, and leading him into every character of temptation. It seems the settled rule in this State that justices' courts have only such jurisdiction as is conferred by statute. Rocheport v. Bank, 75 Mo.App. 332; R. S. 1899, secs. 695, 3835.
John B. Dempsey for respondent.
(1) There is nothing in the Constitution of the State of Missouri, nor in the Constitution of the United States, which prohibits the Legislature from enacting the statute in question. Its power to enact laws similar in terms, scope and purpose has been upheld by this and other appellate courts as will appear in their decisions sustaining our lien laws. Mechanic's lien, sec. 4203, R. S. 1899; landlord's lien on crops, sec. 4123, R. S. 1899; Henry & Coatsworth Co. v. Evans, 97 Mo. 47; Henning v. Stead, 138 Mo. 430; Bank v. Carswell, 126 Mo. 436; Davidson v. New Orleans, 96 U.S. 97. Legislation is not open to the charge of depriving one of his rights without...
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