Hanna v. The Island Coal Co.
| Decision Date | 27 September 1892 |
| Docket Number | 467 |
| Citation | 31 N.E. 846,5 Ind.App. 163 |
| Parties | HANNA v. THE ISLAND COAL COMPANY |
| Court | Indiana Appellate Court |
From the Greene Circuit Court.
Judgment affirmed, with costs.
J. S Bays, for appellant.
A. G Cavins, E. H. Cavins and W. L. Cavins, for appellee.
This was an action commenced in the Greene Circuit Court by the appellant against the appellee to recover the amount of an attorney's fee for which the appellant claims the appellee was liable. The complaint filed was in two paragraphs. The court below sustained a demurrer to each paragraph. The appellant took proper exceptions to the ruling of the court, and refused to amend either paragraph of his complaint, whereupon the court gave judgment upon the demurrer in favor of the appellee.
The material allegations in the first paragraph were in substance as follows: That at the times mentioned in the complaint the appellant was an attorney at law, and being so, one Charles Stark employed him to bring a suit in the Greene Circuit Court against the appellee for five thousand dollars for personal injuries received by him in the appellee's coal mines by reason of the negligence of the appellee, "and to properly conduct the same to a final determination"; that the appellant, as such attorney, did commence such action "and spent much time and labor in preparing said suit for trial * * * and in employing assistance in said cause and paying the expenses thereof," and that by reason thereof the said Stark became indebted to him. It is then averred that the appellee, well knowing these facts, after the said suit had been commenced, and before trial, compromised and settled the cause of action with the said Stark without the knowledge or consent of the appellant, and paid him a sum of money unknown to the appellant, thus causing the suit to be dismissed; that before the said compromise was made the appellant gave notice in writing to the appellee of his rights in the premises, and that the amount due him for his services, and for the money he had expended, was unpaid. It is also alleged that at the time the notice was given and at the time the compromise was made the said Stark was insolvent, which fact was known to the appellee.
The second paragraph of the complaint is substantially the same as the first, with the exception that it charges that at the time the compromise was made, the appellee, well knowing that the said Stark was insolvent, entered into a collusion with him for the fraudulent purpose of cheating the appellant "out of his lien for his services and expenses in said cause, and for the fraudulent purpose of cheating him out of his fees for such services and expenses," compromised and settled said cause for a sum of money unknown to the appellant, and caused the same to be dismissed, whereby "the said fee and lien" were lost to the appellant.
It thus appears that the only question submitted for the consideration of this court, is the action of the court below in sustaining a demurrer to each of the paragraphs of the complaint.
It is alleged in the complaint, and admitted by the demurrer, that the appellant made a valid contract with the said Stark to perform services for him in bringing an action against the appellee for personal injuries received by him resulting from the appellee's negligence. As to what the facts were constituting the cause of action that Stark claimed to have against the appellee we are not informed. The complaint simply informs us that the appellant was employed to bring suit against the appellee "for personal injuries received by said Stark," through the negligence of the appellee. It sufficiently appears, however, from the allegations of the complaint, that the appellant had a valid claim against Stark for services rendered.
There is no allegation that any money was expended by the appellant at the request of Stark, but, conceding that the appellant had the right to recover from Stark the money expended by him, as well as for the services rendered, the question is, do the facts stated make a cause of action against the appellee?
The only statutory method of obtaining a lien by an attorney against his client is in this State given by section 5276, R. S. 1881, and this is only "on any judgment rendered in favor of any person or persons employing such attorney, to obtain the same." The lien provided for in this statute can only be had in the manner prescribed, after a judgment is rendered.
In this case, the cause of action, whatever it was, was compromised before judgment, therefore the statute has no application. Under some circumstances, an attorney may hold a lien for fees and costs without the aid of the statute above mentioned.
In Puett v. Beard, 86 Ind. 172, the following statement is made: This language is quoted with approval in the case of Justice v. Justice, 115 Ind. 201, 16 N.E. 615. See, also, Andrews v. Morse, 12 Conn. 444; Stratton v. Hussey, 62 Me. 286; Boyle v. Boyle, 106 N.Y. 654, 12 N.E. 709. In Justice v. Justice, supra, it was decided that an attorney who, by his services, has procured a will to be set aside, and established his client's right to share in the estate of the testator, acquires an equitable lien for his fees upon the funds so secured to his client, and is entitled to priority of payment over a judgment creditor of the latter whose lien attached after the contract for such professional services was entered into.
In the case of Courtney v. McGavock, 23 Wis. 619 the court draws a distinction between an action for unliquidated damages and one upon a negotiable...
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Hanna v. Island Coal Co.
...5 Ind.App. 16331 N.E. 846Hannav.Island Coal Co.Appellate Court of Indiana.Sept. 27, Appeal from circuit court, Greene county; J. C. Briggs, Judge. Action by Calvin Hanna against the Island Coal Company. Judgment for defendant. Plaintiff appeals. Affirmed. [31 N.E. 847]John S. Bays, for appe......