Hurst v. Cosby

• Decision Date: 19 June 1922
• Docket Number: 75
• Citation: 242 S.W. 570,154 Ark. 300
• Parties: HURST v. COSBY
• Court: Arkansas Supreme Court

242 S.W. 570

154 Ark. 300

HURST v. COSBY

No. 75

Supreme Court of Arkansas

June 19, 1922

Appeal from Washington Chancery Court; Ben F. McMahan, Chancellor affirmed.

Decree affirmed.

Sullins & Ivie, for appellant.

John Mayes, for appellee.

SMITH J. WOOD and HUMPHREYS, JJ., not participating.

OPINION

SMITH J.

This is the second appeal in this case, the opinion on the former appeal being reported in 149 Ark. 11. As appears from that opinion, this is a proceeding to enforce an attorney's lien. In the former appeal, as in the present one, the decree was rendered on the pleadings. The first decree, which declared a lien in favor of the attorney, was reversed by us because he had not "set forth in his complaint a state of facts which would confer a lien, in that he does not allege that the policy or other evidence, if any, of appellant's claim against the insurance company was turned over to him and still remains in his possession." As a reason for that ruling we said: "Such a lien at common law was, as we understand, on the evidence of indebtedness in the hands of the attorney, and not on the debt itself. This being true, appellee has not shown in the complaint that he had in his possession any papers on which he was entitled to a lien."

On the remand of the cause the plaintiff amended his complaint to allege "that the said defendant, G. A. Cosby, turned over and delivered to this plaintiff, as his attorney, all of his papers, proofs, etc., which were necessary in making said adjustment, settlement and collection as aforesaid, and this plaintiff remained in possession of same at all times until the filing of his original suit herein, and is still in possession of same."

After this amendment to the complaint had been filed, defendant filed a motion to make the complaint more definite and certain by alleging what papers he claims to have in his possession; but this motion does not appear to have been acted upon by the court or responded to by the plaintiff.

The defendant also filed the following demurrer:

"1. That said complaint does not contain matter or state facts sufficient to constitute a cause of action within the jurisdiction of this court.

"2. That said complaint and each and every paragraph thereof, taken separately or collectively, fail to contain matter or state facts sufficient to constitute a cause of action against the defendant within the jurisdiction of this court.

"He therefore says this court is without jurisdiction to hear and determine this cause, and that same should be dismissed."

Upon the hearing thereof this demurrer was sustained. The court then offered to transfer the cause to the law docket, but that offer was declined, and, as plaintiff elected to stand upon his amended complaint, the same was dismissed, and plaintiff has appealed.

It is quite obvious that the paper which...