Haj v. American Bottle Co.
| Decision Date | 05 February 1914 |
| Citation | 103 N.E. 1000,261 Ill. 362 |
| Parties | HAJ v. AMERICAN BOTTLE CO. (CONWAY, Intervener). |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Appellate Court, Second District, on Error to Circuit Court, La Salle County; Edgar Eldredge, Judge.
Action by Adam Rabi Haj against the American Bottle Company, James J. Conway intervener. From a judgment allowing intervener an attorney's lien on a judgment entered pursuant to a settlement in favor of his client, which judgment was affirmed by the Appellate Court of the Second District, defendant appeals on a certificate of importance. Reversed and remanded.
Boys, Osborn & Girggs, of Streator, for appellant.
M. T. Moloney, Henry M. Kelly, and James J. Conway, all of Ottawa, for appellee.
Adam Rabi Haj, a boy under the age of 21 years, had a claim against the appellant, the American Bottle Company, for damages on account of a personal injury received while employed by it, and on March 19, 1912, he and his father, Sam Haj, entered into a written contract with the appellee, James J. Conway, by which it was agreed that the appellee should institute and prosecute a suit, and in case of recovery should receive for his fees one-third of any judgment that might be collected or one-third of any amount which would be received in settlement. The next day the appellee commenced a suit in the circuit court of La Salle county in the name of the minor, by his father as next friend, against the appellant, as he had agreed to do. A settlement was agreed upon between the appellant and the minor and his next friend, and the parties went to Ottawa for the purpose of completing the settlement in the court. The appellee was sent for, but could not be found, as he was absent from the state. A jury was impaneled, and for the purpose of the settlement some evidence was heard, and there was a verdict for the plaintiff for $1,000, on which judgment was entered, and it was paid. During the same term the appellee filed his petition claiming a lien upon the judgment for one-third of the amount in payment for his legal services. The court found that he was entitled to the lien and entered judgment against the appellant for $333.33. The judgment of the circuit court was affirmed by the Appellate Court for the Second District, and that court granted a certificate of importance and an appeal to this court.
On the hearing of the petition the appellee proved that he sent a written notice from Ottawa to the appellant at Streator, where it was located, by mail, inclosed in an envelope properly stamped and addressed and postage prepaid, on the day the contract was made. The evidence for the appellant was that no one was authorized to receive or open mail for it except the president, the superintendent, and a bookkeeper employed in the office to assist the president, and they all testified that they never received the letter. If the letter was received or was not, it is a question of law whether service of notice by mail is a compliance with the statute.
The act creating attorneys' liens and for enforcement of the same provides for a lien for the amount of any fee which may have been agreed upon by and between such attorneys and their clients, or, in the absence of such agreement, for a reasonable fee: ‘Provided, however, such attorneysshall serve notice in writing upon the party against whom their clients may have such suits, claims or causes of action, claiming such lien and stating therein the interest they have in such suits, claims, demands or causes of action.’ Laws 1909, p. 97. In Carney v. Tully, 74 Ill. 375, where the question was whether the plaintiffs had brought themselves within the provisions of the mechanic's lien statute, which provided that the party claiming a lien should cause a notice to be served upon the owner, lessee, or his agent, the court said: ‘Service of a written notice always means actual, personal service.’ In Chicago & Alton Railroad Co. v. Smith, 78 Ill. 96, where the validity of a notice was in question, the court said: ‘When a notice is required, and the mode of service is not specified, the law requires that it shall be personal.’ In Wade on Law of Notice the author says (section 1334): ‘In general, however, where notice is required by statute or rule of court and the method of serving the same is not laid down, it is understood that there shall be personal service.’ And again (section 1342): ‘We have seen that when the manner and mode of service is not pointed...
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