Et At. v. Ludington

• Decision Date: 03 April 1880
• Citation: 16 W.Va. 378
• Court: West Virginia Supreme Court
• Parties: Renick et at. v. Ludington, AND.Ford & Son et al. v. Renick et al.

16 W.Va. 378

Renick et at.

v.Ludington, AND.

Ford & Son et al.

v.Renick et al.

Supreme Court of Appeals of West Virginia.

Decided April 3, 1880.

1. An attorney 'has a lien on the judgment or decree, obtained by him for his client, for services and disbursements in the case, whether the amount of his compensation is agreed upon or depends upon a quantum meruit.

2 This lien includes not only the amount necessary to pay for his services and disbursements in the case, in which the judgment or decree is rendered, but also the amount necessary to pay for his services and disbursements in any other case, so connected with it as to form the basis on which such judgment or decree is rendered, or essential to the realizing of such judgment or decree.

3. This lien of the attorney is subject to all the equitable liens of the defendant in the judgment, existing at the time of the rendition of the judgment or decree.

4. Notice to the defendant express or implied of the claim of the plaintiff's attorney to such lien, before the defendant pays such judgment or decree to the plaintiff, is essential to the maintenance of such lien; but notice of the existence of such lien to the assignee of such judgment or decree is not essential to the maintenance of such lien against such assignee without notice.

5. Such lien may be waived by any arrangement or transaction made by or with the attorney, which satisfactorily shows an intention to waive such lien and rely exclusively on some other security or mode of payment; but such lien will continue to exist, unless a manifest intention, that it shall not continue to exist, appears.

6. P., an attorney, recovers a judgment for B. against L., and after L.

becomes totally insolvent, E. assigns this judgment for a valuable consideration to D., who has no notice of the attomey's lien on this judgment. P., the attorney, then takes the bond of E. for his fees in the case, and at the same time E. confesses a judgment to P, for the amount, and simultaneously he assigns his judgment against L. to his attorney P. to satisfy his fees. These transactions are not a waiver by the attorney of his lien on this judgment; and he is entitled to priority over D. in the distribution by the court of the amount of this judgment.

7. For a case, in which the doctrine of res adjudicata does not apply,

see the opinion of Green, President.

Appeal from and supersedeas to a decree of the circuit court of the county of Greenbrier, rendered on the 22d day of November, 1878, in two causes in chancery in said court then pending, in the first of which B. F. Renick and others were plaintiffs and Samuel C. Ludington was defendant, and in the second of which D. J. Ford & Son and others were plaintiffs and B. F. Renick and others were defendants, allowed upon the petition of James F. Patton.

Hon. H. A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.

Green, President, furnishes the following statement of the case:

The late firm of Caperton & Patton, of which the appellant, James F. Patton, is the surviving partner, was employed many years since to prosecute certain suits at law in the circuit court of Greenbrier county, W. Va., against Samuel C. Ludington, for certain debts, which arose from a certain contract between those parties. This firm was also employed by Renick to defend in a certain suit in chancery, brought in that court by Ludington to set aside this contract. This last cause was taken to the Supreme Court of Appeals of West Virginia and there attended to by said counsel, who finally succeeded in establishing said contract and also in obtaining judgments in the common law suits. They then as counsel for Renick instituted in said court a creditor's bill, to enforce the lien of said judgments against the real estate of said Ludington, which is still pending in said circuit court. During the progress of this cause the lands of said Ludington were sold by commissioners, and the proceeds arising therefrom are in the process of collection and distribution under orders of said circuit court, and a certain sum was allowed and decreed to said Renick, to be paid out of the proceeds of said sales.

At the same time there was pending in the circuit court of Greenbrier county another creditor's bill, brought by Ford & Son and others against B. F. Renick and others, he having become insolvent, one of the objects of which suit was to enforce against the real estate of Renick the liens of numerous judgments, and to have the same paid by a sale of his lands. The amount of the judgments in, favor of Renick v. Ludington as of November 13, 1875, was $5,235.35. One of these judgments was rendered October 7, 1871, and was for $4,934.55 with interest from April 20, 1871; and on October 3, 1876, John W. Dunn having a judgment against Renick amounting then to $901.01, Renick assigned to him so much of the above judgment as would make and produce, when fully paid, the $901.01 with interest from October 3, 1876; and on the 9th day of October said Renick assigned to James J. Reid so much of his judgment against said Ludington, as will make and produce $537.25 with interest from October 9, 1876. This assignment was made to satisfy a balance on two bonds, which were secured by a deed of trust on certain real estate of said Renick; and when the assignment was made, the bonds, which then belonged to Reid, were surrendered.

In the above chancery suit of Ford & Son et al. v. Renick et al., a commissioner on October 1, 1877, reported with reference to the judgment of said Dunn v. Renick, that Dunn had appeared before the commissioners and represented that he had obtained from Renick this assign- merit of October 3, 1876, and that when paid it would Cully satisfy his judgment; and the commissioner states " that "he has examined the debt due from Ludington to Renick and finds there will be enough of the same to pay the Dunn assignment after deducting all previous assignments, and this in his opinion disposes of the Dunn judgment." The commissioner in this report also reports the above facts in relation to the debts due J. J. Reid, and adds:" Under these circumstances your commissioner reports the Reid debt paid." He accompanies this report with a statement of the judgment in favor of Renick v. Ludington, showing the amount of the decree in the chancery cause of Renick v. Ludington was of date November 13, 1875, $5,235.35, and that of this an assignment had been made of date October 26, 1875, to J. H. Renick, now for Snyder, of $657.54, another assignment to A. C. Snyder of Septembers, 1876, of $2,656.31, to R. F. Dennis of same date $900.00, to J. W. Dunn of October 3, 1876, $901.01, and to J. J. Reid October 9, 1876, $537.25, which assignments would consume the whole amount of the decree, leaving due to Reid, as of October 9, 1876, the sum of $191.41. This portion of the report was not excepted to; and by a decree in said suit of Ford & Son et al. v. Renick et al., rendered November 17, 1877, this report was confirmed.

Subsequently the commissioner in another report in said cause dated October 24, 1878, stated, that " it was then represented to him that James F. Patton, in whose favor he had reported a judgment against Renick as of date November 14, 1870, for $900.00, claims that this debt was a fee for services for Renick in the suit of Renick v. Ludington, and is therefore a lien (as claimed by Patton) upon the judgment against Ludington; and the commissioner was requested to state an account of the Ludington judgment and the assignments made by Renick, and include Patton's debt, treating it as a lien on said judgment, and further to report whether or not it will change the list of liens reported, and if so, how and to what extent. It is manifest, that, if the Patton debt is allowed by the court as a lien upon the Ludington judgment, no part of the Reid debt can be paid, and but a part of the assignment to Dunn." The commissioner then makes a statement of this judgment in favor of Renick v. Ludington, in which he allows this claim of Patton as a lien on the same prior to the assignments to Dunn and Reid; and the result is, that there would be nothing to pay Reid, and there would be a balance due to Dunn ol $558.24, which would be unpaid after the application of what remained of this judgment in favor of Renick v. Ludington; and the commissioner concludes his report as follows: "Thus your commissoner concludes, that, if the Patton debt was a lien upon the debt known as the Ludington judgment, then at the time of the assignment by Renick to Dunn there was not enough to pay $901.01 by $558.24, and that Dunn's judgment would not be paid by that amount with interest thereon from the 3d day of October, 1876; and further that the said amount would have to be paid before the amount reported in favor of Renick's sureties, as the judgment was obtained at the April term of the circuit court, 1871, and the account of the liens heretofore made in this report would have to be changed thus: Insert as No. \l the balance on judgment due to John W. Dunn etal, of judgment April, 1871, due 29th of May, 1871......................................................................... $558.24

Interest on same from Oct. 8, 1876, to Nov. 1, 1878............ 69.15

Amount as of Nov. 1, 1878.............................. $627.39

If however the court should hold, that the debt due to J. F. Patton possess no priority, or is not a lien on the Ludington judgment, the statement in the last report, showing the amount of said judgment and the interest of the different assignees therein, is correct, and need not be changed; nor need the report of this lien on B. F. Renick's real estate, as reported on page four, be changed."

This portion of the report was excepted to by the counsel of Renick's administrators and by the counsel of Dunn; and James F. Patton by leave of the court filed his petition in the suit of Renick v. Ludington et al., in which he sets up...