Elliott v. Orton

• Decision Date: 02 April 1918
• Docket Number: 8542.
• Citation: 171 P. 1110,69 Okla. 233,1918 OK 176
• Parties: ELLIOTT ET AL. v. ORTON ET AL.
• Court: Oklahoma Supreme Court

171 P. 1110

69 Okla. 233, 1918 OK 176

ELLIOTT ET AL. v. ORTON ET AL.

No. 8542.

Supreme Court of Oklahoma

April 2, 1918

Syllabus by the Court.

A party who voluntarily acquiesces in or ratifies, either partially or in toto, a judgment against him, cannot appeal from it.

Any act on the part of the appellants by which they impliedly recognize the validity of the judgment below against them operates as a waiver of the appeal therefrom or to bring error to reverse it, and, where some of the appellants accept and appropriate residue of money received from the sale after the satisfaction of appellees' claim, which had been appealed from, and thereupon motion to dismiss such appellants' appeal on account of such action being timely filed, should as to such appellants be sustained and their appeal dismissed.

Under section 247, Rev. Laws 1910, an attorney has a lien upon his client's affirmative cause of action only, and this statutory lien cannot be extended to services which merely protect an existing right or title of his client's property. He cannot impress such property with such statutory lien.

Commissioners' Opinion, Division No. 2. Error from District Court, Pawnee County; Conn Linn, Judge.

Suit to enforce an attorney's lien by L. V. Orton and another against Maria Elliott, the First National Bank of Ralston Okl., and another. Judgment for plaintiffs, and defendants bring error. Judgment as to the bank reversed, and court below ordered to modify its decree.

Redmond S. Cole, of Oklahoma City, for plaintiffs in error.

L. V Orton, of Pawnee, for defendants in error.

WEST C.

This suit was instituted in the district court of Pawnee county Okl., on the 21st day of April, 1915, by defendants in error, plaintiffs blow, against plaintiffs in error, defendants below, to impress and enforce an attorney's lien on certain lots situated in the town of Ralston in said county and state. Parties will be referred to hereinafter, as they appeared in the court below.

It appears that: Some time in 1911 Mary Elliott and J. W. Elliott were sued by one Stroud to dispossess and quiet title to the lots in controversy, and that plaintiffs were employed to defend said suit. That, at the time of the institution of this suit and before the employment of plaintiffs, Elliotts had executed a mortgage to John A. Stuart on said property for the sum of $150. During the progress of the suit, plaintiffs indorsed, "Attorney's lien claimed." upon the answer filed to the Stroud suit. That in 1914 the Elliotts executed a mortgage to the First National Bank of Ralston for $325. This included the Stuart mortgage for $150 which had been assigned by Stuart to the Bank of Ralston, which was succeeded by the First National Bank, and some other sums which were due by Elliotts to the bank. After the disposition of the Stroud suit, which was decided in favor of the Elliotts, plaintiffs undertook to impress an attorney's lien upon the lots by this suit, claiming that they had a statutory lien, and in addition that the Elliotts had promised to execute them a mortgage upon the lots to secure their attorney's fee. Elliotts filed answer to the suit setting up the fact that the lots were a homestead, that the lots sought to be impressed were not the lots in controversy in the Stroud suit, and that they had executed a mortgage upon said lots to the First National Bank which was a superior and prior lien to any lien which the plaintiffs might have, and further that under the attorney's lien law the plaintiffs could not maintain their suit for the reason that the statutory lien sought to be enforced could only attach to the cause of action and not to the subject-matter of the action. The First National Bank filed a separate answer which was practically the same as the answer filed by the Elliotts; cause was tried to the court on the 5th day of January, 1916; and a judgment rendered in favor of plaintiffs, giving them the lien upon the property sought to be impressed therewith, subject to the $150 represented by the Stuart mortgage. From this action of the court defendants perfected their appeal, and plaintiffs below, defendants in error, have filed motion to dismiss said appeal for the reason that said cause has become a moot question on account of the acts and conduct of the defendants since their appeal herein.

The ground of said motion is in effect that, after the appeal was taken, no supersedeas bond having been filed, plaintiffs had order of sale issued and property sold to satisfy the judgment, and that the same was bought in by John A. Stuart, the president of the First National Bank, for the sum of $190, subject to the $150 which was represented by the original mortgage given him and included in the $325 mortgage claimed by the bank; and that, after the satisfaction of the judgment of plaintiffs, there remained something over $52 which the Elliotts accepted, thereby ratifying said judgment and sale. We are of the opinion that said motion is well taken.

In the second paragraph of the syllabus in case of Barnes et al. v. Lynch et al., 9 Okl. 11, 59 P. 995, the following rule is announced:

"A party who voluntarily acquiesces in or ratifies, either partially or in toto, a judgment against him, cannot appeal from it. Where plaintiffs brought action, claiming to be the owners of certain lands praying a decree for absolute title, and for the quieting of the same, and the decree was for the defendant, decreeing that the defendant was the owner of the lands, from which decree plaintiffs appealed, and, pending appeal, on supplemental petition in the trial court plaintiffs claimed to have expended individual moneys in the purchase of the lands under circumstances that would entitle them to an equitable lien for the amount expended, and had a referee appointed to make an accounting of the moneys so expended, and asking that the amount so found should be decreed an equitable lien upon the land, held, that such subsequent proceeding, being inconsistent with the assertion of absolute ownership and title, was an acquiescence in and ratification of the judgment, and that their appeal should be dismissed."

In the body of the opinion the court announced and adopted the following rule: "No rule is better settled than that the right to appeal may be waived by acts of the party which are inconsistent with the assertion of that right. A party who voluntarily acquiesces in or ratifies, either partially or in toto, a judgment against him, cannot appeal from it."

In case of ...