Davidson v. Board of Com'rs of La Plata County

• Decision Date: 09 November 1899
• Citation: 26 Colo. 549,59 P. 46
• Parties: DAVIDSON et al. v. BOARD OF COM'RS OF LA PLATA COUNTY.
• Court: Colorado Supreme Court

59 P. 46

26 Colo. 549

DAVIDSON et al. v. BOARD OF COM'RS OF LA PLATA COUNTY.

Supreme Court of Colorado

November 9, 1899

Error to La Plata county court.

Action by W. C. Davidson and others against the board of county commissioners of La Plata county. Judgment for defendant, and plaintiffs bring error. Reversed.

N. C Miller, for plaintiffs in error.

Willis A. Reese and O. S. Galbreath, for defendant in error.

CAMPBELL C.J.

This is an action to enforce an attorney's lien upon a judgment. On April 11, 1892, in the district court of La Plata county, M. R. Shields, as plaintiff recovered a judgment against the board of county commissioners of La Plata county for $5,266.38. The plaintiffs here were the attorneys for Shields in that action, and it is for the fees earned by them in prosecuting the same that the attorney's lien is claimed. On the 12th of May of the same year they filed in the office of the clerk of the district court a notice of their claim of lien, and on the next day caused to be entered in the margin of the record of the judgment a notice of their intention to rely on the same. Afterwards, and on the same day, Shields, the judgment debtor, by a writing in the same margin, assigned the judgment, as collateral security, to the Colorado State Bank of Durango, for a debt he owed it; and the attorney of the bank, who acted for it in taking the assignment, read this notice of plaintiffs before the assignment was made. On the 26th of that month, plaintiffs filed with the county clerk of the county a notice, addressed to the board of county commissioners, in which they claimed a lien upon the judgment for their services, and admonished the board to reserve the amount of their fee ($1,025) from any settlement it might make of such judgment; otherwise, the board would be held liable therefor. In October, 1892, the county delivered to the bank, in satisfaction of the judgment, certain of its bonds, which were sold by the bank, which applied the proceeds on Shields' indebtedness. On the 14th of February, 1893, the plaintiffs brought an action in the county court of La Plata county to enforce their lien, naming as defendants M. R. Shields and the Colorado State Bank of Durango. Judgment went against plaintiffs, and they appealed to the district court of the same county, where, after filing an amended complaint naming as defendants M. R. Shields, who was not served with process, the board of county commissioners of La Plata county, which appeared, but filed no answer, and the Colorado State Bank of Durango, which filed an answer, a trial was had on the issues joined under the amended complaint and this answer resulting in a decree in favor of the plaintiffs, adjudging the amount of their claim a lien upon the judgment, and ordering the bank to account for and pay the same to the plaintiffs. The bank appealed to the court of appeals, and the judgment was reversed, the opinion of the court appearing in 7 Colo.App. 91, 42 P. 687. The opinion discloses that, in the judgment of that tribunal, there was no evidence that the board of commissioners received any notice, or had any knowledge, of the plaintiffs' intention to resort to the judgment for a satisfaction of the lien, until service of summons upon them; and it further appeared from the evidence that the bank took its assignment of the judgment without any notice or knowledge of the plaintiffs' claim, and that the board paid to the bank the amount of the judgment in good faith and in ignorance of plaintiffs' claim. Plaintiffs therefore, according to the opinion, having lost their lien against the judgment debtor (the county), and their lien being subordinate to that of the bank, the decree was reversed. The court, as a matter of law, however, held that, if there was a surplus of the judgment after the bank's claim was liquidated, plaintiffs might have a lien thereupon; but as Shields was not served with process, and did not voluntarily appear, no judgment was, and none could have been, rendered against him upon which the bank's liability depended, but which, in any event, would not attach, unless the amount of plaintiffs' lien was first established against Shields. The case was therefore remanded, with leave to the plaintiffs to amend their complaint to make Shields a party. After the cause was remanded to the district court, the plaintiffs, instead of amending as suggested, dismissed the action without prejudice, and then, after first establishing the amount of their claim as a judgment against the estate of Shields (Shields in the meantime having died), brought this action in the county court of La Plata county, making the board of county commissioners the sole defendant. Afterwards, in pursuance of rulings so requiring, the plaintiffs filed an amended complaint, making the bank and the personal representatives of M. R. Shields co-defendants with the board. The representatives of Shields disclaimed any interest in the controversy, and answers were filed by the bank and the board. The answer of the bank contained a general denial, and, as a separate defense, a plea of a judgment in its favor by the court of appeals. Trial was had to the court without a jury, and judgment was rendered dismissing the action, to reverse which plaintiffs have sued out this writ of error.

We do not discuss in detail all of the questions raised, but shall determine the rights of plaintiffs, both against the county and the bank; for we are clear that the judgment should be reversed, and a new trial had.

This action is not barred by the statute of limitations pleaded by the board. Plaintiffs have not been guilty of laches in enforcing their claim, and they are not estopped by any act or conduct to maintain the action.

The decision of the court...