Hubbard v. Ellithorpe
| Decision Date | 03 July 1907 |
| Citation | 112 N.W. 796,135 Iowa 259 |
| Parties | GEO. C. HUBBARD, Adm'r of the Estate of HENRY L. HASTINGS, Deceased, v. LULU R. ELLITHORPE ET AL., Appellants |
| Court | Iowa Supreme Court |
Appeal from Ida District Court.-- HON. F. M. POWERS, Judge.
SUIT in equity brought by the plaintiff as administrator of the estate of Henry L. Hastings, deceased, to recover an attorney's fee against Lulu R. Ellithorpe, for services in procuring a divorce for her, and to establish an attorney's lien upon certain funds now in the hands of the clerk of the district court of Ida county. There was a decree for the plaintiff, from which Lulu R. Ellithorpe appeals.-- Affirmed.
Affirmed.
P. W Harding, for appellants.
Johnston Bros., for appellee.
The firm of which the plaintiff's intestate was a member was employed by the defendant Lulu R. Ellithorpe to procure a divorce for her. The case was contested, and, after trial the plaintiff was given a decree of divorce and permanent alimony in the sum of $ 3,000. While the case was pending, temporary alimony and suit money in the sum of $ 400 was awarded the plaintiff. After the judgment of divorce had been entered fixing the permanent alimony at the sum stated, the attorneys for Lulu R. Ellithorpe made a memorandum on the record as follows: "We hereby file and claim a lien on the within judgment in the sum of $ 1,000." After this memorandum had been made, the defendant paid the amount of the judgment to the clerk of the district court, and $ 1,000 thereof has remained in his hands and is now held by him, awaiting final disposition of this case. Code, section 321, provides:
An attorney has a lien for a general balance of compensation upon money due his client in the hands of the adverse party . . . upon an action or proceeding in which the attorney claiming the lien was employed. . . . After judgment in any court of record, such notice may be given, and the lien made effective against the judgment debtor by entering the same in the judgment or combination docket opposite the entry of judgment.
The appellant contends that an attorney has no lien upon a judgment, but only upon money while in the hands of the adverse party, that the statute does not provide that an attorney may have a lien upon money when paid into the hands of the clerk of the district court. It is further claimed that an attorney is not entitled to a lien on alimony secured by him in a divorce proceeding, and that he can only recover for his services such sum as has been allowed by the court to be paid by the opposite party. Of these questions in their order.
It is true the statute does not give an attorney a lien on the judgment itself, but provides only that he may have a lien upon money in the hands of the adverse party, but it does provide that the notice of a claim to the money in the hands of the adverse party shall be given by the memorandum note on the judgment or combination docket. The filing of this notice is sufficient to protect the attorney against payment of the judgment by the party against whom it is rendered, and, if the judgment debtor pays the judgment notwithstanding the notice, he does so at his own peril, but we know of no sound reason why the judgment debtor may not pay the money into the hands of the clerk conditionally -- that is, he may deposit it with the clerk, making the clerk his agent for the purpose of protecting him against the attorney's lien, and enter into an arrangement with the clerk whereby the fee due the attorney may be turned over to him when the amount to which he is entitled is determined -- and this we take from the nature of this proceeding and the record is what was done in this case.
As we understand it, it is conceded that the clerk still holds $ 1,000 of the judgment for the sole and only purpose of satisfying the amount which shall be found due the attorneys. This was the view taken by Judge Wright in a dissent in Fisher v. Oskaloosa, 28 Iowa 381, and in the main opinion in that case the majority of the court recognized the fact that conditions might arise when it would be permissible for the judgment debtor to pay the money to the clerk of the court, but in the Fisher case the controversy was between the judgment debtor and the attorney and the holding there was that, as between the two, the former had no right to...
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