Koons v. Beach

• Decision Date: 15 December 1896
• Docket Number: 17,925
• Citation: 45 N.E. 601,147 Ind. 137
• Parties: Koons, Administrator, et al. v. Beach
• Court: Indiana Supreme Court

45 N.E. 601

147 Ind. 137

Koons, Administrator, et al. v. Beach

No. 17,925

Supreme Court of Indiana

December 15, 1896

Rehearing Denied Feb. 26, 1897, Reported at: 147 Ind. 137 at 142.

From the Henry Circuit Court.

Affirmed.

James Brown and W. A. Brown, for appellants.

M. E Forkner and F. E. Beach, for appellee.

OPINION

Hackney, J.

This was a suit by the appellee to declare and enforce a lien for attorney's fees against a fund remaining in the hands of Koons, administrator, and primarily distributable to the appellant, Cory, but claimed by the other appellants as assignees of Cory. Two questions are presented: The action of the court in overruling the several demurrers of the appellants to the complaint, and in overruling their motion for a new trial.

The complaint alleged that the appellee was an attorney in regular practice; that Koons, as administrator, held for collection a policy of life insurance, payable to the estate of which he was administrator, and that Cory was, after the payment of the debts and costs of settling the estate, entitled to the balance of any sum collected upon said policy; that the insurance company was denying its liability upon said policy, and the administrator had employed attorneys to enforce the same; that said Cory had employed the appellee to assist in securing a compromise of the differences between said company and the estate, the compensation for such service having been agreed upon, in an amount stated, and it having been agreed that appellee should be paid from the sum to be obtained in such compromise and settlement; that the appellee did assist in securing a compromise and settlement with said company by which fifty per centum of the policy was paid to said administrator; that the appellee entered upon the probate record containing the appointment of Koons, at the entry of said appointment, a notice of intention to maintain an attorney's lien for said fees; that a large sum will remain, upon final settlement of the estate, for distribution to the credit of said Cory; that said Cory is insolvent and has assigned his interest in said fund and all other property to the appellant, Landis, and has given orders to others, his creditors, for sums which the administrator threatens to pay to the exclusion of the appellee's claim, and without retaining any sum for his benefit.

As a legal lien, authorized by section 7238, Burns' R. S. 1894 (5276, R. S. 1881), the facts pleaded are not sufficient. Such a lien may be held "on any judgment rendered in favor of any person or persons employing such attorney, to obtain the same: Provided, That such attorney shall, at the time such judgment shall have been rendered, enter, in writing, upon the docket or record wherein the same is recorded, his intention to hold a lien thereon, together with the amount of his claim." In this case so far as the complaint discloses, no judgment was rendered, no notice of lien was entered upon any judgment docket or order book, wherein a judgment would have been proper, and, necessarily, the basis for such legal lien did not exist. 1 Watson on Indiana Statutory Liens, section 34; Alderman v. Nelson, 111 Ind. 255, 12 N.E. 394; Hill v. Brinkley, 10 Ind. 102; Hanna v. Island Coal Co., 5 Ind.App. 163, 31 N.E. 846. While the complaint alleges notice of lien, entered upon the order appointing the administrator, its facts can only be considered with reference to the theory of an equitable lien. It is true that this court said, in Alderman v. Nelson, supra, "It is not necessary to inquire whether an attorney had a lien on his client's judgment at common law, for the statute covers the entire subject and creates a lien, and that is the only one that can be enforced."

This statement was made with reference to liens upon judgments, and, if our statute covers the entire subject of such liens, it is clear that it does not attempt to cover the question of liens upon funds secured by the client through the aid of his employed attorney, and by other steps than a judgment. In the more recent case of Justice...