Greenleaf v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company, a Corporation

• Decision Date: 09 January 1915
• Citation: 151 N.W. 879,30 N.D. 112
• Court: North Dakota Supreme Court

151 N.W. 879

30 N.D. 112

D. C. GREENLEAF v. MINNEAPOLIS, ST. PAUL, & SAULT STE. MARIE RAILWAY COMPANY, a Corporation

Supreme Court of North Dakota

January 9, 1915

Rehearing denied March 18, 1915.

Appeal from the District Court of Ward County, F. E. Fisk, J special judge. Action to recover on an attorney's lien. From an order sustaining a demurrer to the complaint plaintiff appeals.

Reversed and remanded.

E. R Sinkler and W. F. Doherty, for appellant.

Where the legislature enacts a provision taken from a statute of another state or country in which the language of the act has received a settled construction, it is presumed to have been intended that such provision should be understood and applied in accordance with that construction. Cass County v Security Improv. Co., 7 N.D. 536, 75 N.W. 775; Besser v. Alpena Circuit Judge, 155 Mich. 631, 119 N.W. 902; Nicollet Nat. Bank v. City Bank, 38 Minn. 85, 8 Am. St. Rep. 643, 35 N.W. 577; State ex rel. McCue v. Blaisdell, 18 N.D. 31, 119 N.W. 361; Kan. Gen. Stat. 1868, § 8.

An attorney has a lien in a tort action. Anderson v. Metropolitan Street R. Co., 10 Kan.App. 575, 61 P. 982; Smith v. Chicago, R. I. & P. R. Co., 56 Iowa 720, 10 N.W. 244; Gibson v. Chicago, M. & St. P. R. Co., 122 Iowa 565, 98 N.W. 474; Barthell v. Chicago, M. & St. P. R. Co., 138 Iowa 688, 116 N.W. 813; Winslow v. Central Iowa R. Co., 71 Iowa 197, 32 N.W. 331; Clark v. Sullivan, 3 N.D. 283, 55 N.W. 733; Anderson v. Itasca Lumber Co., 86 Minn. 480, 91 N.W. 12, 291; Corson v. Lewis, 77 Neb. 449, 114 N.W. 281; 23 Am. & Eng. Enc. Law, 155.

There can be no departure from the terms of the statute where no absurdity or inconvenience will follow from a liberal construction. 26 Am. & Eng. Enc. Law, 598; Gibson v. Chicago, M. & St. P. R. Co., 122 Iowa 565, 98 N.W. 475.

Palda, Aaker, & Greene, for respondent.

The plaintiff's firm did not acquire any interest in their client's cause of action, or any lien upon any sum of money which might be recovered either through judgment or compromise settlement. An attorney's valid lien amounts to an assignment of an interest in his client's cause of action. Clark v. Sullivan, 3 N.D. 280, 55 N.W. 733; Lown v. Casselman, 25 N.D. 44, 141 N.W. 73.

This is an action in tort, and such a cause, for personal tort, is not assignable, and defendant could settle or pay without hindrance. 4 Cyc. 24, and note 46; Weller v. Jersey City, H. & P. Street R. Co., 68 N.J.Eq. 659, 61 A. 459, 6 Ann. Cas. 442; Howard v. Ward, 31 S.D. 114, 139 N.W. 771; Lawrence v. Martin, 22 Cal. 174; Coughlin v. New York C. & H. R. R. Co., 71 N.Y. 443, 27 Am. Rep. 75; John V. Farwell Co. v. Wolf (John V. Farwell Co. v. Josephson) 96 Wis. 10, 37 L.R.A. 138, 65 Am. St. Rep. 22, 70 N.W. 289, 71 N.W. 109; Pulver v. Harris, 52 N.Y. 73; Murray v. Buell, 76 Wis. 657, 20 Am. St. Rep. 92, 45 N.W. 667; Tyler v. Superior Ct. 30 R. I. 107, 23 L.R.A. (N.S.) 1045, 73 A. 467; Boogren v. St. Paul City R. Co., 97 Minn. 51, 3 L.R.A. (N.S.) 379, 114 Am. St. Rep. 691, 106 N.W. 104; Smelker v. Chicago N.W. R. Co., 106 Wis. 135, 81 N.W. 994; Hanna v. Island Coal Co., 5 Ind.App. 163, 51 Am. St. Rep. 246; Hammons v. Great Northern R. Co., 53 Minn. 249, 54 N.W. 1108; Anderson v. Itasco Lumber Co., 86 Minn. 480, 91 N.W. 12, 291.

The original action was for a personal tort, did not survive, and was not assignable. 4 Cyc. 23, 24; Courtney v. McGavock, 23 Wis. 619.

BRUCE, J., GOSS, J. FISK, Ch. J., dissenting.

OPINION

BRUCE, J.

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 § 6293, Rev. Codes 1905, § 6875, Compiled Laws 1913, provide for attorneys' liens in the case of unliquidated claims for personal injuries? We think it does.

The statute, § 6293, Rev. Codes 1905, 6875, Compiled Laws of 1913, provides that "an attorney has a lien for a general balance of compensation in and for each case upon: . . . 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 survice 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 anyone, for instance, claim that if a person had contracted for an annuity during his life, and 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 R. Co. v. Ackley, 171 Ill. 100, 44 L.R.A. 177, 49 N.E. 222, and Standidge v. Chicago R. Co., 254 Ill. 524, 40 L.R.A. (N.S.) 529, 98 N.E. 963, 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 Standridge 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. Northern P. R Co. v. Richland County, 28 N.D. 172, L.R.A.1915A,...