Gulf States Steel Co. v. Justice

• Decision Date: 21 October 1920
• Docket Number: 6 Div. 944
• Citation: 204 Ala. 577,87 So. 211
• Parties: GULF STATES STEEL CO. v. JUSTICE (GOODWYN & ROSS et al., Interveners.
• Court: Alabama Supreme Court

87 So. 211

204 Ala. 577

GULF STATES STEEL CO. v. JUSTICE (GOODWYN & ROSS et al., Interveners.

6 Div. 944

Supreme Court of Alabama

October 21, 1920

Appeal from Circuit Court, Jefferson County; J.C.B. Gwynn, Judge.

Action by Jesse C. Justice, as administrator, against the Gulf States Steel Company, for damages for the death of his intestate in the employment of the defendant, with intervention by Chas. A. Calhoun and Goodwyn & Ross. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Percy Benners & Burr, of Birmingham, and James Rice, of Tuscaloosa for appellant.

Chas A. Calhoun, of Birmingham, and Goodwyn & Ross, of Bessemer, for appellee.

THOMAS J.

The suit is by a personal representative for the death of intestate, an employé. The trial was had on counts 9, 11, and 12 of the complaint, as amended on April 29, 1919, and on the petition for intervention by the attorneys named therein. Respondent in petition objected to filing intervention, moved to strike, pleaded in abatement, moved to transfer to equity, and demurred. After the respective denial or overruling of the same, defendant in the main suit sought to plead, as we will later indicate.

Count 9 charged negligence under subdivision 5 of the Employers' Liability Act (Code, § 3910); count 11, under subdivision 1; and count 12, under subdivision 2. Demurrer was sustained to all pleas, except that of the general issue. The paramount questions arise from a construction of Code, § 3011, as to attorney's lien on the suit, when the same was made by the attorneys of record of an administrator of plaintiff's intestate. The construction of subdivision 2 of that section is found in several recent decisions by this court. Mr. Justice Sayre said of the statute, in a suit by a passenger for personal injury, that it "gives a remedy by providing that attorneys have the same right and power over suits to enforce their liens as their clients had or may have." Western Ry. of Ala. v. Foshee, 183 Ala. 182, 192, 62 So. 500, 503. Mr. Chief Justice Anderson observed of this statute, that it was a literal reproduction of the Georgia statute, and that the construction thereof by the Georgia court was as follows:

"As attorneys at law have a lien for their fees upon all suits brought by them, the defendant in a civil action cannot settle with the plaintiff, so as to defeat the lien of the latter's attorney or his right to proceed with the case to recover the amount of his fee."

The suit was by a servant for damages for personal injury. Fuller v. Lanett Bleaching Co., 186 Ala. 117, 65 So. 61.

Provisions of the statute were construed by Mr. Justice McClellan on a bill to enforce the attorney's lien on lands of his client, in Harton v. Amason, 195 Ala. 594, 599, 71 So. 180, 182, where he observed of the extent of the statutory lien that--

"While an attorney at law or solicitor in chancery has a lien for his remuneration for professional services in that particular behalf upon a judgment or decree obtained for his client to the extent of his agreed or his reasonable compensation (Higley v. White, 102 Ala. 604, 15 So. 141), and a positive lien for his remuneration in that and other instances and circumstances described and defined in Code, § 3011, the law in this jurisdiction remains, in the respect to be stated, as it was before the enactment of the statute (Code, § 3011), viz. that an attorney or solicitor has no lien on real estate of his client for his remuneration. Higley v. White, supra; Kelly v. Horsely, 147 Ala. 508, 41 So. 902." (Italics supplied.)

In a suit by an injured servant, observation was made by Mr. Justice Gardner that it appears without contradiction--

"that counsel for appellee who make this motion were the counsel representing the plaintiff in the recovery of said judgment, and that as such counsel they are interested in the judgment, claiming a lien thereon for their attorney's fee, and are claiming a liability on the part of appellant to the extent thereof." Empire Coal Co. v. Bowen, 195 Ala. 348, 350, 70 So. 283, 284.

In a suit for damages to an employee (Lowery v. Ill. Cent. R.R. Co., 195 Ala. 144, 146, 69 So. 954, 955), Mr. Justice Mayfield observed of subdivision 2 of this statute that it--

"was construed in the case of Fuller v. Lanett Cotton Mills, 190 Ala. 208, 65 So. 61 [meaning Fuller v. Lanett Bleaching Co., 186 Ala. 117]. In that case the settlement was made pending the appeal to this court, and it was ruled that plaintiff's attorney had a right to prosecute the appeal, notwithstanding the release by plaintiff and defendant's motion to dismiss the appeal, based upon such release in writing. *** As was said by this court in Fuller's Case, supra , the subject is discussed at great length in a note" to Cameron v. Boeger, 93 Am.St.Rep. 165, 173, 174.

He quotes from Cameron v. Boeger as follows:

"While honest settlements between the parties to a litigation, made without any intention of taking advantage of their attorneys, are commendable and to be encouraged, collusive and fraudulent settlements, made for the purpose of defrauding the attorneys, are, of course, reprehensible. If such are attempted, the court may interfere to protect the attorney. Its power to do so is inherent, and is founded on its right to protect its own officers against collusion and fraud practiced by the parties to the cause. The authority of courts in this respect has been exercised both under the common law, and under the statutes designed to secure attorneys in the collection of their compensation for services rendered in a cause. The proper course for the attorney is to proceed with the suit, notwithstanding the fraudulent settlement, for the purpose of enforcing his claims."

In a suit by an administrator for the death of plaintiff's intestate, in Denson v. Ala. Fuel & Iron Co., 198 Ala. 383, 388, 389, 395, 73 So. 525, 527, 528-530, it was said:

"Intervener contends that by his employment as attorney, and the bringing of the 'suit' pursuant thereto, he acquired a lien on the suit, that could not be compromised by the parties, and that, until this lien was satisfied, he had the same right and power to direct and continue said suit, to the end of the enforcement of his lien as attorney, for the amount so due him; that is to say, *** as such attorney of record bringing the suit he may prosecute it to final judgment, for the ascertainment of the amount of his lien, and for the satisfaction thereof, as though no such compromise had ever been made between the parties to the suit. *** Under subsection 2 it has been held that an attorney for the plaintiff has a lien on the cause of action, and may intervene to prosecute the original suit to a final judgment, notwithstanding the parties plaintiff and defendant have settled the pending cause in so far as the plaintiff's interest therein is concerned. *** Nor is the statutory lien on the 'suit' made dependent on the service of process. The filing of the complaint at law, or the bill in chancery, in the court having jurisdiction of the cause and in a county of the venue, is the commencement of the suit on which the statute fixes a lien; *** and the lien existent when the complaint

or declaration or bill is filed in the court having jurisdiction of the subject-matter in controversy and in the county of the venue of the action." The statute (Code, § 3011) was last construed on a bill seeking to enforce the attorney's lien of judgment on the lands sold under execution thereon. It was again declared that, viewing the whole statute, the lien of the attorney is not broader than its terms, which provide: (1) That a lien extends to and upon all papers and money of the client in possession of his attorney, for services rendered to the client in reference thereto; (2) upon suits, judgments, and decrees for money, with the same right and power that the client had or may have over such suits, judgments, and decrees, to enforce such lien, for the amount due him for professional services rendered in that behalf; (3) upon all suits for the recovery of personal property, all judgments or decrees for the recovery of the same, and upon the personal property recovered on such judgments or decrees, unless in the hands of bona fide purchasers; (4) that this lien may be enforced as other liens are enforced. Hale v. Tyson, 202 Ala. 107, 79 So. 499.

Before the statute was adopted, the lien of the attorney on the money judgment was well recognized in this state. Ex parte Lehman, Durr & Co., 59 Ala. 631; Warfield v. Campbell, 38 Ala. 527, 82 Am.Dec. 724; Williams v. Bradley, 187 Ala. 158, 65 So. 534; Fuller v. Clemmons, 158 Ala. 340, 48 So. 101. In the first of the above-cited cases Mr. Chief Justice Brickell observed:

"We regard it as settled in this state, by the decision in Warfield v. Campbell, 38 Ala. 527, that an attorney at law, or solicitor in chancery, has a lien upon a judgment, or decree, obtained for a client, to the extent of the compensation the client has agreed to pay him; or, if there has been no specific agreement for compensation, to the extent to which he is entitled to recover of the client--reasonable compensation for the services rendered. *** The lien of an attorney, or of a solicitor, rests on the theory, that he is to be regarded as an assignee of the judgment or decree, to the extent of his fees, from the date of the rendition of the judgment or decree."

In line with this court's construction of statutory liens is that of a federal decision where complainant's solicitor of record conducted a suit, and in the course thereof had consulted with counsel retained by him to the date of final hearing (the petitioner for allowance and enforcement of attorney's lien), when both he and counsel participated in the...