Greenleaf v. Minneapolis, St. P. & S. S. M. Ry. Co.

• Decision Date: 18 February 1915
• Citation: Greenleaf v. Minneapolis, St. P. & S. S. M. Ry. Co., 30 N.D. 112, 151 N.W. 879 (N.D. 1915)
• Court: North Dakota Supreme Court
• Parties: GREENLEAF v. MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

30 N.D. 112

151 N.W. 879

GREENLEAF

v.MINNEAPOLIS, ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

Jan. 9, 1915.

On Rehearing, Feb. 18, 1915.

Syllabus by the Court.

Section 6293, Rev. Codes 1905, being section 6875, Comp. Laws 1913, and which provides for an attorney's lien on “money due his client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed from the time of giving notice in writing,” applies to tort actions for personal injuries as well as to actions which are founded upon contract, and this although such actions do not survive the death of the plaintiff.

The words “action” and “proceeding” as used in section 6293, Rev. Codes 1905; section 6875, Comp. Laws 1913, include actions and proceedings for the recovery of damages for personal injuries.

An action is “an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.”

The term “proceeding” includes the form and manner of considering judicial business before a court or judicial officer, and regular and ordinary proceedings in form of law, including all possible steps in an action from its institution to the execution of judgment.

Where the language of a statute is unambiguous, it is not for the courts to inquire as to the motive of the Legislature, nor to depart from the meaning which is clearly conveyed.

The attorney's lien given by section 6293, Rev. Codes 1905 (section 6875, Comp. Laws 1913) when sought to be asserted in an action or proceeding for the recovery of damages for personal injuries, attaches to that into which the right of action is merged. If a judgment is recovered the lien attaches to it, if a compromise agreement is made, the lien attaches to it, and in either case the attorney's lien is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent.

It is opposed to the policy of the law and section 6293, Rev. Codes 1905 (section 6875, Comp. Laws 1913), gives to an attorney no right to prevent his client from himself settling his claim for damages for personal injuries and without dictation by such attorney. An agreement which seeks to deprive the client of such right is void, but it does not otherwise invalidatean agreement for contingent fees which is otherwise valid.

Where a lien is claimed under section 6293, Rev. Codes 1905 (section 6875, Comp. Laws 1913), in an action for personal injuries, and due notice thereof is given to the defendant and a settlement or compromise is made with the plaintiff with or without the consent of the attorney, such lien will attach merely to the proceeds of the settlement, and if the contract or lien is for a percentage of the claim or recovery, will merely be for such percentage of the amount for which such claim is settled or compromised.

Appeal from District Court, Ward County; F. E. Fisk, Special Judge.

Action by D. C. Greenleaf against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded.

Fisk, J., dissenting.

E. R. Sinkler, W. F. Doherty, and Dudley L. Nash, all of Minot, for appellant. Palda, Aaker & Greene, of Minot, for respondent.

BRUCE, J.

[1][2] This is an appeal from an order sustaining a general demurrer to a complaint. The only question involved is whether an attorney who has made an agreement with his client in a personal injury action for a percentage “of any amount, received, recovered or obtained from the said defendant by reason of the injuries sustained by him, either in settlement or by action,” and who subsequently serves upon the defendant a notice of an attorney's lien based upon such agreement, can recover from such defendant such percentage on the amount which the said defendant has paid to the plaintiff in settlement of the claim and action, before judgment, and without the knowledge or consent of the said attorney. More specifically the question is: Does subdivision 3 of section 6293, R. C. 1905 (section 6875, Compiled Laws 1913), provide for attorneys' liens in the case of unliquidated claims for personal injuries? We think it does. The statute (section 6293, R. C. 1905; section 6875, Compiled Laws of 1913) provides that:

“An attorney has a lien for a general balance of compensation in and for each case upon: * * * Subdivision 3. Money due his client in the hands of the adverse party, or attorney of such party, in an action or proceeding in which the attorney claiming the lien was employed from the time of giving notice in writing to such adverse party or the attorney of such party, if the money is in the possession or under the control of such attorney, which notice shall state the amount claimed and in general terms for what services.”

Counsel for defendant and respondent claims, and the demurrer was no doubt sustained upon the theory, that:

“(1) Lundy's claim against the defendant was for damages alleged to have been sustained through the negligence of the defendant, which resulted in certain personal injuries of a serious character to said Lundy. It was, therefore, a tort action or demand. (2) An attorney's lien, if a valid one, amounts to an assignment of an interest in his client's cause of action. (3) A cause of action for a personal tort cannot be assigned unless there is a statute declaring that such a cause of action shall not abate on the death of the injured party, or a statute expressly authorizing such assignment. (4) There is no statute in this state in derogation of the common-law rule that a cause of action for personal tort is not assignable, and does not survive. (5) It is against public policy, and therefore contrary to law, to recognize the right of a person to assign an interest in a claim which would not survive his death.”

The first proposition, of course, is to be accepted. The action is certainly a tort action.

We, too, no doubt, have held in the cases of Clark v. Sullivan, 3 N. D. 280, 55 N. W. 733, and Lown v. Casselman, 25 N. D. 44, 141 N. W. 73, that an attorney's lien is in the nature of an equitable assignment of an interest in the claim. The subsequent conclusions of counsel, however, seem by no means to flow from these premises. Nor can we concede that in North Dakota, or indeed in any state, it is necessarily against public policy, and therefore contrary to law, to recognize the right of a person to assign an interest in a claim which would not survive his death, or at any rate, that the Legislature may not authorize such an assignment. Would any one, for instance, claim that if a person had contracted for an annuity during his life, an interest in that annuity during the lifetime of the insured could not be assigned merely because, under the contract, the payments would stop at his death? There is, in short, nothing in the nature of things which makes survivorship an essential to the legislative right to create a statutory lien. All that the question of survivorship affects is the right of assignability and the securing of a claim thereby when the statute is silent and itself creates no lien. It is true that there is some confusion of thought upon the subject to be found among the authorities, but the confusion can, we believe, all be traced to one basic error, and that is the failure to distinguish between the cases which were decided in states, and at a time when no statutory lien or right of an assignment was given or authorized, and in which the common-law rules as to assignability and as to attorneys' liens were alone to be relied upon, and those in which the Legislature had spoken and in which a statutory lien such as ours had been created.

The Illinois cases of North Chicago Street Ry. Co. v. Ackley, 171 Ill. 100, 49 N. E. 222, 44 L. R. A. 177, and Standidge v. Chicago R. Co., 254 Ill. 524, 98 N. E. 963, 40 L. R. A. (N. S.) 529, Ann. Cas. 1913C, 65, illustrate the point. At the time of the transaction which was passed upon in the former of these cases, no statutory lien existed in Illinois, and the plaintiff's attorney had attempted to avoid the fact and to protect his claim by having the cause of action assigned to him as security for his fees. This the court held could not be done in the absence of statutory authority, as the cause of action did not meet the common-law criterion of assignability, which seems to have been survivability. Between the handing down of the opinion in this case, however, and that in the later case of Standidge v. Chicago R. Co., supra, the Legislature had intervened and created such a lien, and the court in the later opinion sustained the statute and the lien without even mentioning the elements of survivability or assignability.

The question, indeed, for us to determine is not whether the cause of action survives and is assignable, but whether in enacting the statute under consideration the Legislature intended that its provisions should apply to tort as well as to contract actions. We think it did. If the North Dakota Legislature intended that such a lien should exist, the cases which are founded on the common-law rule are certainly not applicable. There is no constitutional provision which forbids the enactment of any such statute. The allowance of such a lien cannot be said to be against public policy if the statute is otherwise valid, for public policy is the policy of the people of a state as a whole, and in the absence of a constitutional inhibition can be adequately and fully expressed by the Legislature of a state. N. P. Ry. Co. v. Richland County, 148 N. W. 545.

It is true that the statute in North Dakota does not provide that actions for personal injuries shall survive the death of the plaintiff. It seems, however, to be universally conceded, and even by the authorities on which ...