Lowery v. Illinois Cent. R. Co.

• Citation: 69 So. 954,195 Ala. 144
• Decision Date: 21 October 1915
• Docket Number: 105
• Parties: LOWERY v. ILLINOIS CENT. R. CO.
• Court: Supreme Court of Alabama

69 So. 954

195 Ala. 144

LOWERY v. ILLINOIS CENT. R. CO.

No. 105

Supreme Court of Alabama

October 21, 1915

Rehearing Denied Nov. 18, 1915

Appeal from Circuit Court, Walker County; J.J. Curtis, Judge.

Action by M.J. Lowery against the Illinois Central Railroad Company. After reversal of judgment for plaintiff, and pending a second trial, he released defendant from liability, and plaintiff's attorney, seeking to enforce his attorney's lien, moved to strike defendant's pleas of release. Judgment of nonsuit, and defendant's attorney appeals. Reversed and remanded.

Ray &amp Cooner, of Jasper, for appellant.

Davis &amp Fite, of Jasper, for appellee.

MAYFIELD J.

This appeal involves the construction and effect to be given to subdivision 2 of section 3011 of the Code, which provides for attorneys' liens upon suits, judgments, etc. This subdivision reads as follows:

"Upon suits, judgments, and decrees for money, they shall have a lien superior to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment, or decree, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments, and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them."

Appellant brought suit against appellee to recover damages for personal injuries alleged to have been proximately caused by the negligence of defendant. He obtained a judgment for $750, but this judgment was reversed on appeal to this court. See report of case, 184 Ala. 443, 63 So. 952.

Before the case was called for a second trial, defendant effected with plaintiff a compromise and settlement of the suit for $180, and on payment of that amount obtained from plaintiff a release from all liability on account of the suit. The defendant pleads this release as a defense to the further prosecution of the suit.

The attorney for plaintiff moved to strike the pleas, and demurred thereto. The court ruled against the attorney, both as to his motion to strike and his demurrer. His motion to strike the pleas was based on the ground that he was employed as plaintiff's attorney in the suit; that he had prosecuted it to judgment, but the judgment was reversed on appeal; and that before the next trial the defendant, without movant's knowledge or consent, without paying movant's fees or otherwise discharging his lien given by the statute, and for the purpose of defrauding movant out of the greater part of his fees, and in violation of the statute, settled and compromised the suit for a grossly inadequate amount, to wit, $180, and issued to defendant the release set up and relied upon in the pleas. Movant then filed several replications to the special pleas, and the court sustained a demurrer thereto; whereupon movant took a nonsuit with bill of exceptions, as provided for by section 3017 of the Code, and appeals to this court to review such rulings thus inducing the nonsuit.

Subdivision 2 of section 3011 of the Code was construed in the case of Fuller v. Lanett Cotton Mills, 65 So. 61. In that case the settlement was made pending the appeal to this court, and it was ruled that plaintiff's attorney had a right to prosecute the appeal notwithstanding the release by plaintiff and defendant's motion to dismiss the appeal based upon such release in writing. While nothing was said in the opinion in Fuller's Case as to the constitutionality of the statute, it was of necessity held valid, because the right of plaintiff's attorney to prosecute was based solely on the statute.

It therefore follows that the defendant's special...