King v. Acuff, 6 Div. 258

• Court: Supreme Court of Alabama
• Writing for the Court: SAYRE, J.
• Citation: 218 Ala. 619,119 So. 833
• Parties: KING et al. v. ACUFF.
• Docket Number: 6 Div. 258
• Decision Date: 24 January 1929

119 So. 833

218 Ala. 619

KING et al. v. ACUFF.

6 Div. 258

Supreme Court of Alabama

January 24, 1929

Appeal from Circuit Court, Walker County; R.L. Blanton, Judge.

Bill in equity by J.D. Acuff against Rufus King and others, to enforce a lien for attorney's fees. From a decree overruling a demurrer to the bill, respondents appeal. Reversed and remanded.

J.B Powell, of Jasper, for appellants.

J.J Ray and R.A. Cooner, both of Jasper, for appellee.

SAYRE J.

Appellee in this cause filed his bill to enforce an alleged lien under section 6262 of the Code. The litigation out of which the lien is supposed to have arisen was prosecuted by appellee on behalf of appellants and others under the authority of section 9905 of the Code, which provides for suits in equity to settle the title to lands and to clear up all doubts or disputes concerning the same.

Appellee's alleged lien is based upon the third subdivision of section 6262, wherein it is provided that attorneys at law shall have a lien "upon all suits for the recovery of real or personal property, and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien on the property recovered," etc.

We are not disposed to any narrow construction of the statute (section 6262) creating a lien in favor of attorneys (6 C.J 768, § 365). But the lien cannot be extended beyond the fair intendment of the statute, the effect of which, in agreement with the principles of the common law, is to place the attorney in the position of an equitable assignee of the judgment obtained by him for his client. Ex parte Lehman Durr & Co., 59 Ala. 631; Mosely v. Norman, 74 Ala 422; Warfield v. Campbell, 38 Ala. 527, 82 Am.Dec. 724. The statute has broadened this lien to some extent, has indicated the legislative preference for the substance and incidents of the lien as declared in the Georgia statute which has been adopted, but there is still no warrant under which the court can extend the lien to cases not to be found in the language of the common law or the statute. The third subdivision of section 6262 creates, or at least defines, a lien in favor of attorneys "on the property recovered." This feature of the statute is more than once referred to in our recent case of Owens v. Bolt (Ala.Sup.) 118 So. 590. Appellee's bill fails to show any property recovered for his clients in the proceedings out of which his lien is alleged to have arisen. He recovered a judgment or decree for his clients, appellants, but for the court now to pass a decree declaring him to be the equitable assignee of that judgment or decree to any extent whatever would accomplish nothing to appellee's advantage; this, because the decree merely denies that defendants in the original cause, out of which the lien here in question is supposed to have arisen, had any interest in the property there made the subject of litigation. There was no recovery of...