Hilma v. Peterson
| Decision Date | 21 December 1923 |
| Docket Number | 23,518,23,519 |
| Citation | 197 N.W. 110,157 Minn. 379 |
| Parties | HILMA W. WESTERLUND v. EMIL E. PETERSON; LEWIS & HUNT, PETITIONERS |
| Court | Minnesota Supreme Court |
Petition for Rehearing Filed January 25, 1924
Two actions in the district court for St. Louis county, one by plaintiff individually and the other as mother and natural guardian of a minor child. Her attorneys of record obtained an order to show cause why the amount and validity of their fees should not be determined by the court and plaintiff enjoined from the prosecution of any other action against them to determine the amount of their services. Plaintiff made special appearance through other attorneys, and objected to the jurisdiction of the court. The objection was overruled, Cant, J. From the order overruling the objection and denying her motion to vacate the restraining order plaintiff appealed. Reversed.
Fixing amount of attorney's fee.
1. Where there has been a settlement between attorney and client, the former retaining from the moneys of his client, with the latter's consent, the amount of his fee, the attorney cannot thereafter force the client into court by the summary statutory proceeding for the enforcement of attorney's liens, and have the settlement confirmed or the amount of his fee determined anew and by the court.
Client's right to jury trial.
2. In such a case, if the client should sue the attorney for a part or all of the money retained by him, he would have the constitutional right to trial by jury, which the attorney's lien statute does not and cannot impair.
Enforcement of attorney's lien.
3. That statute, section 4955, G.S. 1913, chapter 98, Laws 1917, construed accordingly; and where the attorney claims a lien under subdivisions 1 or 2 on money or property of his client, in his own possession and control, he cannot resort to the summary proceeding furnished by subdivision 6 for the enforcement of liens arising under subdivisions 3, 4 and 5.
January 25, 1924.
On Petition for Rehearing.
Election of remedy by client.
4. A client, whose money is in the hands of his attorney, may elect to bring action at law for the money or proceed summarily, under G.S. 1913, § 4956.
Statutory denial of trial by jury invalid.
5. A statute vesting in the court the discretion to deny the constitutional right to a jury trial is invalid.
Court's denial of trial by jury when defendant is attorney, invalid.
6. There is nothing in the control which courts possess over attorneys, as officers of the court, which makes permissible the extension of such control, so as to include litigants and permit the taking from the latter of their right to a jury trial in an action for money, simply because the defendant is an attorney.
McClearn & Gilbertson, for appellant.
Adams & Jones, A. L. Agatin and George B. Sjoselius, for Lewis & Hunt.
This proceeding results from two actions commenced in the district court. One was to recover the expenses incurred by plaintiff in caring for her minor son, after injuries sustained by him through the alleged negligence of defendant. The companion case for the son's benefit sought damages for the injuries.
The respondents, Messrs. Lewis & Hunt, attorneys at law, were retained to conduct both cases. The actions were commenced and settled. By the settlement, approved of course by plaintiff, it was agreed that judgment be entered in the mother's case for $1,200 and in the son's for $1,550. Judgments were so entered and collected and the money paid to plaintiff's attorneys. They retained $450 as their fee in the mother's case and $550 in the son's making their total charge $1,000.
As between plaintiff and her attorneys, the settlement was intended to be final. The fee, while large, was somewhat less than the attorneys were entitled to by their contract with plaintiff. There the matter rested for some time. Apparently, it was a closed incident, and rapidly becoming ancient history. But it came to the notice of Messrs. Lewis & Hunt that friends of their erstwhile client had interested themselves in her affairs and were criticizing the settlement because of the size of the attorney's fee.
So, to have the matter settled, if they could, some four months after the settlement, the attorneys petitioned the district court for an order directing plaintiff to show cause why a judge of that court should not, in the summary statutory proceeding, determine the amount of their fees in each of the cases. The order issued and plaintiff appeared specially and moved that the petition be stricken from the record upon the ground that the court had no jurisdiction to hear and determine the matter in a summary proceeding. After a hearing, the court made an order denying plaintiff's motion. This appeal is from that order.
The only question presented is one of statutory construction, the statute involved being section 4955, G.S. 1913, chapter 98, p. 121, Laws 1917, relating to the liens of attorneys. The provisions of section 4955 with which we are concerned are these:
An attorney has a lien for his compensation * * *.
1. Upon the papers of his client coming into his possession in the course of his employment.
2. Upon money in his hands belonging to his client.
3. Upon the cause of action from the time of the service of the summons therein, or the commencement of the proceeding, and upon the interest of his client in any money or property involved in or affected by any action or proceeding in which he may have been employed, from the commencement of said action or proceeding, and, as against third parties, from the time of filing the notice of such lien claim, as provided in this action.
4. Upon the money or property in the hands of the adverse party to the action or proceeding in which the attorney was employed, from the time such party is given notice of the lien.
5. Upon a judgment * * *.
6. The liens provided by subdivision 3, 4 and 5 of this section may be established, and the amount thereof determined, by the court, summarily, in the action or proceeding, on the application of the lien claimant or of any person or party interested in the property subject to such lien, on such notice to all parties interested therein as the court may, by order to show cause, prescribe, or, such liens may be enforced, and the amount thereof determined, by the court, in an action for equitable relief brought for that purpose.
The italics are those used in the 1917 amendment to indicate the new matter.
The question then is whether Messrs. Lewis & Hunt have the right under the statute to take the initiative, hale their former client into court and compel her to submit, in a summary proceeding under subdivision 6, to a final adjudication of her claim, whatever it may be. That question we answer in the negative and for reasons as follows:
It will be observed that the proceeding furnished by subdivision 6 does not apply to liens under subdivisions 1 and 2, but includes only those arising under subdivisions 3, 4 and 5.
If there is anything upon which the attorneys here have a lien, it is money in their hands belonging to their client. It is a case within subdivision 2.
If subdivision 3 is construed to include cases such as this, whether there has been a settlement or not, subdivision 2 is made surplusage. It is rendered utterly meaningless. That is one reason for avoiding the construction of the statute necessary to sustain the position of the attorneys in the instant case.
Subdivision 3, if it stood alone, would lend itself to the broad construction contended for. But it is just as susceptible of the narrower interpretation restricting to the interest of the client in money or property not in the possession or exclusive control of the attorney claiming the lien, but in whole or in part still in the possession or under the control of the court, an adversary, or even a stranger to the action. That is probably the only result...
To continue reading
Request your trial