Koons v. Beach

• Decision Date: 26 February 1897
• Citation: 46 N.E. 587,147 Ind. 137
• Parties: KOONS et al. v. BEACH.
• Court: Indiana Supreme Court

147 Ind. 137

46 N.E. 587

KOONS et al.

v.BEACH.

Supreme Court of Indiana.

Feb. 26, 1897.

On petition for rehearing. Overruled.

For prior report, see 45 N. E. 601.

HACKNEY, J.

It is now earnestly contended that no basis exists for an attorney's lien where, without suit, payment is made to the client, in whole or in part, by compromise resulting from the efforts of the attorney. In other words, it is insisted a judgment is indispensable to a lien unless the attorney has the money or papers of his client upon which the lien is asserted. Dr. Wharton, in his work on Agency (section 623 et seq.), defines the “liens of attorneys” as “retaining” and “charging” liens; the former existing as against moneys or papers in the hands of the attorney, and the latter as one “which gives the creditor the right to collect such debt, as a priority, out of property in the hands of another.” See, also, 1 Am. & Eng. Enc. Law (1st Ed.) pp. 969, 970. The charging lien, therefore, is that here involved, and it need not be confused with the former. It is true that a line of cases holds that this lien does not obtain until the judgment is rendered. See Jones, Liens, § 103 et seq. But it will be found that this is so either with reference to statutory liens, or as to the intervening right of the parties to settle their litigation short of a judgment, and not be disturbed in that right by a consideration of the attorney's claim. Public policy forbids that attorneys may interpose and defeat fair settlements between litigants, and statutory liens are maintained only in the method pointed out by the statute. While, in the original opinion, we employed the expressions “attorneys' liens” and “equitable liens,” and we were justified by the common use of the expressions in the books, yet they are not accurate. The lien which an attorney is said to have is merely a claim to the equitable interference of the court for his debt when he finds that his client is about to deprive him of it. See Jones, Liens, § 155, and the numerous illustrations there given. Where, therefore, equity is appealed to, the inquiry is not, necessarily, did the attorney procure a judgment? but it is, does he present a claim where the law supplies no remedy as efficient, and where, in good conscience, theclient should not be permitted to defeat the attorney of his just compensation? One test of this claim, as originally shown, is this: Was the fund secured by the client through the efforts of the attorneys? And another is, was the compensation of the attorney, expressly or by implication, such a charge against the fund as to amount to an assignment of some part thereof? In either event equity...