Dahlstrom v. Featherstone

• Decision Date: 03 May 1910
• Citation: 110 P. 243,18 Idaho 179
• Parties: CLORA MARKLE DAHLSTROM, Plaintiff, and PORTLAND MINING CO., Defendant, Appellants, v. A. H. FEATHERSTONE, Petitioner, et al., Respondents
• Court: Idaho Supreme Court

110 P. 243

18 Idaho 179

CLORA MARKLE DAHLSTROM, Plaintiff, and PORTLAND MINING CO., Defendant, Appellants, v. A. H. FEATHERSTONE, Petitioner, et al., Respondents

Supreme Court of Idaho

May 3, 1910

APPELLATE PRACTICE-ORDER AFTER FINAL JUDGMENT-FINAL JUDGMENT-ATTORNEY'S FEE-ATTORNEY'S CHARGING LIEN-EQUITABLE LIEN ON JUDGMENT-PROCEDURE FOR ACQUIRING LIEN.

(Syllabus by the court.)

1. Where a final decree has been entered in a foreclosure suit awarding judgment and attorney's fees in favor of the creditor, and thereafter the judgment is satisfied of record by the judgment creditor in the manner provided by statute and the court, on motion of the attorney who procured the judgment, vacates and sets aside the satisfaction of judgment and enters an order or judgment adjudging the attorney to be the equitable assignee of the judgment in the amount of fees still due him, and ordering an execution to issue out of the original action in favor of the attorney, such a judgment or order is a final judgment within the purview and meaning of subd. 1, sec. 4807, Rev. Codes, and an appeal may be prosecuted therefrom within one year from the entry of such judgment.

2. A judgment in a foreclosure suit awarding attorney's fees to the judgment creditor may be collected in full by the judgment creditor, and satisfaction thereof may be entered by him in conformity with the provisions of sec. 4461, Rev Codes, unless the attorney has previously given notice to the judgment debtor and taken steps for the purpose of establishing the equity of his lien and having the same lay hold upon the original judgment procured by him for the security and payment of the fees earned by him in obtaining the original judgment.

3. In the absence of notice that the attorney's fees have not been paid and that the attorney claims a lien on the judgment for that purpose, the judgment debtor is authorized and protected in paying the entire judgment to or settling it with the judgment creditor.

4. Where a judgment has been satisfied of record in conformity with the provisions of statute, sec. 4461, Rev. Codes, the attorney who procured the judgment and who has failed and neglected to take any steps for the purpose of fastening the equity of his lien upon the judgment cannot bring the parties into court by the service of a notice and motion on the attorneys who represented the respective parties in the original action and by service of a notice through the mails on his quondam client.

5. Where an attorney who has not been paid his fees for procuring a decree of foreclosure of a mortgage seeks to have the satisfaction of the judgment vacated and set aside and execution issue in his favor for the amount of his unpaid fees, on the grounds that such judgment was satisfied through fraud and collusion between the judgment debtor and judgment creditor for the purpose of defrauding him out of his fees he is under the necessity of establishing the amount of fees still due him as against the client and of establishing the charge of fraud and collusion as against both his client and the judgment debtor, and the parties are entitled to their day in court for the purpose of joining issue and having a hearing thereon.

APPEAL from the District Court of the First Judicial District, for the County of Shoshone. Hon. R. T. Morgan, Judge.

Petition and motion by respondent, A. H. Featherstone, to have the equity of his lien for attorney's fees established as a charge against a judgment procured by him, and to have the satisfaction of that judgment vacated and set aside on the grounds of fraud and for an execution on the original judgment. Judgment entered in favor of the petitioner, and the judgment debtor and one of the judgment creditors appeal. Reversed.

Judgment reversed, Costs awarded to appellant.

A. G. Kerns, for Appellants.

One cause of action cannot be grafted on to another to hold parties before a court indefinitely. (French Trustee v. Hay, 22 Wall. (U.S.) 245, 22 L.Ed. 854.)

The owner of a judgment may receive property, securities, or any other thing of value in satisfaction of the same, if he so chooses, and when he has once accepted any substitute for money, his acceptance becomes irrevocable. (2 Black on Judgments, 987.)

Unless an attorney has an interest in or lien upon a judgment, his client may, in good faith, settle and compromise the same in any manner he chooses, without consulting the attorney, and he has no right to interfere with or prevent such settlement. (Wagner v. Goldschmidt, 51 Ore. 63, 93 P. 689; Day v. Larsen, 30 Ore. 247, 47 P. 101; Stearns v. Wollenberg, 51 Ore. 88, 14 L. R. A., N. S., 1095, 92 P. 1079; Wolfe v. Lewis, 19 How. (U.S.) 280, 15 L.Ed. 643; Platt v. Jerome, 19 How. (U.S.) 384, 15 L.Ed. 623; Wright v. Ellison, 1 Wall. 16, 17 L.Ed. 555.)

Payment produces a permanent and irrevocable discharge, after which the judgment cannot be restored by any subsequent agreement, nor kept on foot to cover new and distinct engagements. (2 Freeman on Judgments, 466.)

In Idaho as in California there is no statute giving an attorney a lien upon, and therefore an interest in, a judgment; and the attorney must consequently recover for his services in the ordinary mode. The "ordinary mode" is by an action against his client, and not against the judgment debtor. (Ex parte Kyle, 1 Cal. 332, and cases cited.)

Mr. Featherstone was never a party to the suit, and was not made so by intervention. He could not intervene after judgment. (1 Black on Judgments, 219; Seamster v. Black-stock, 83 Va. 232, 5 Am. St. 262, 2 S.E. 36.)

The only adequate and proper remedy in such case is by a separate action where all parties claiming an interest are brought before the court. (Mayer v. Sparks, 3 Kan. App. 602, 45 P. 249; McCutcheon v. Allen, 96 Pa. 319.)

Gray & Knight, W. K. Shissler, and Carlton Fox, for Respondents.

Attorney's fees may be awarded where the mortgage provides therefor, and when awarded, constitute a lien upon the property foreclosed. (Stockton Sav. & L. Soc. v. Donnelly, 60 Cal. 481; Broadbent v. Brumback, 2 Idaho 366, 16 P. 555; Warren v. Stoddard, 6 Idaho 692, 59 P. 540; Porter v. Title Guaranty & Surety Co., 17 Idaho 364, 106 P. 299; Gray v. Denhalter, 17 Utah 312, 53 P. 976.)

The attorney is the equitable assignee of a judgment or decree, to the extent of the attorneys' fees therein allowed. ( Loofbourow v. Hicks, 24 Utah 49, 66 P. 603, 55 L. R. A. 874; Newbert v. Cunningham, 50 Me. 231, 79 Am. Dec. 612; 3 Am. & Eng. Ency. of Law, 2d ed., 458, subd. "f.")

A court of equity will protect its attorneys in any lien or equitable interest which they may have acquired for attorneys' fees in a judgment. (Gray v. Denhalter, supra; Stearns v. Wollenberg, 51 Ore. 88, 92 P. 1079, 14 L. R. A. , N. S., 1095; Exhibition Co. v. Crane, 167 N.Y. 505, 60 N.E. 768; Curtis v. Richards, 4 Idaho 437, 95 Am. St. 134, 40 P. 57; Goodrich v. McDonald, 112 N.Y. 157, 19 N.E. 649, at p. 653; Weeks v. Wayne Circuit Judges, 73 Mich. 256, 41 N.W. 269; Falconio v. Larson, 31 Ore. 137, 48 P. 703, 37 L. R. A. 254; Curtis v. Railroad Co., 118 Mo.App. 341, 94 S.W. 762; Carpenter v. Myers, 90 Mich. 209, 51 N.W. 206; Potter v. Hunt, 68 Mich. 242, 36 N.W. 58; Phelps v. Mutual Reserve Life Fund Assn., 112 F. 453, 50 C. C. A. 339.)

The case of Mahone v. So. Tel. Co., 33 F. 703, is very instructive on the question of when a party, dealing with property in litigation, has constructive notice of an attorney's lien thereon or equitable interest therein for fees. (See, also, Covington v. Bass, 88 Tenn. 496, 12 S.W. 1033.)

AILSHIE, J. STEWART, J., Concurring. SULLIVAN, C. J., Dissenting.

OPINION

AILSHIE, J.

A motion has been made to dismiss this appeal on the ground that it was not taken within sixty days after the order or judgment was made. The order or judgment from which the appeal has been prosecuted was made in the case of Clora Markle Dahlstrom, Plaintiff, v. Portland Mining Co., Alvan Markle and Markle Banking and Trust Co., Defendants, and some three years after the rendition and entry of the original judgment. The order involved in this appeal was made and entered on July 3, 1905, and directed that the satisfaction of the original judgment which had been made and entered be vacated and set aside, and that Albert H. Featherstone, who had been the attorney of record for the defendant and cross-plaintiff Alvan Markle in the original action, was "the equitable assignee of the Markle judgment . . . . to the amount of $ 5,987.24, together with the interest thereon at the rate of seven per cent per annum from the 5th day of December, 1902," the latter date being the date of the original judgment.

The order or judgment from which this appeal is taken also adjudges and decrees that Alvan Markle, defendant and cross-plaintiff in the original action, is indebted to Featherstone in the sum named, and that an execution issue in the original action in favor of Featherstone and against the defendants in the sum named, and that the property described in and covered by the original decree be sold to make the amount named. While this order or judgment, whichever it may be called, is entitled in the original action and in that sense is an order made after final judgment, still in effect and as a matter of fact it is a judgment in favor of Featherstone, who was not a party to the original action, and adjudicates his rights and demand as against both the plaintiff and defendants in the original action, and the order or judgment of the court should, therefore, be treated as a final judgment for the purposes of allowing the party aggrieved to prosecute his appeal within the statutory period of one year as provided by subd. 1 of sec. 4807, Rev. Codes.

The same order was before this court on ...