Lundy v. O'Connor

• Decision Date: 27 July 1955
• Docket Number: No. 48759,48759
• Citation: 246 Iowa 1231,71 N.W.2d 589
• Parties: Marie LUNDY, plaintiff, v. Lee O'CONNOR, also known as Leo O'Connor, defendant-appellee, W. A. Dutton, Attorney, appellant.
• Court: Iowa Supreme Court

Page 589

71 N.W.2d 589

246 Iowa 1231

Marie LUNDY, plaintiff, v. Lee O'CONNOR, also known as Leo O'Connor, defendant-appellee W. A. Dutton, Attorney, appellant.

No. 48759.

Supreme Court of Iowa.

July 27, 1955.

W. A. Dutton, Sioux City, for appellant.

Raymond S. Hill, Sioux City, for appellee.

THOMPSON, Justice.

On July 21, 1952, the plaintiff herein secured a judgment against the defendant-appellee in the sum of $729, with interest and costs. The appellant W. A. Dutton was her attorney in this action. While the written judgment entry is labelled 'Decree', the action is noted as 'No. 69003 Law', and there were no equitable issues. It was clearly a law action asking only a money judgment for damages for an unlawful assault and battery.

On August 5, 1952, defendant's wages were garnished under a writ of execution upon the judgment above described. Thereupon the defendant gave a note to the appellant, which is herewith set out:

'Aug. 6th, 1952

'For Value Received, we promise to pay to W. A. Dutton, Assignee, at 813 Frances Bldg. in Sioux City, Woodbury County, Iowa, Seven hundred twenty nine dollars plus costs. $25.00 today and in payments of $15.00 on the sixth and 21st day of each month hereafter until $729.00 has been paid with interest [246 Iowa 1233] at 6 per cent per annum, in payment of an account as it appears

'On the books of District Court Woodbury County, Ia. Case No. 69003. Upon default in payment the entire note shall become due and we agree to pay attorney's fees as fixed by law. As security to this agreement we transfer to the Assignee our wages, commissions, or other moneys earned, and we authorize and direct each of our employers to pay ten per cent of our wages, commissions or other moneys on each pay day, and we agree that the receipt of said Assignee shall stand herein as our receipt and release said employer. As further security we pledge and convey the following property to said Assignee:

'Leo O'Connor.'

The defendant failed almost entirely to comply with the terms of the note, and several further garnishments were levied against his wages. The total amount recovered to apply on the judgment was approximately $75. As these moneys were received by the appellant, one-half thereof was remitted to the plaintiff. The record shows an oral agreement between plaintiff and appellant that the latter should receive one-half the amount collected upon the judgment in payment for his services.

On December 16, 1954, the appellant made this entry on Judgment Docket 57, at page 46 (this being apparently the docket and page at which plaintiff's judgment against defendant was recorded in the office of the clerk of the Woodbury District Court):

'notice of fifty per cent ownership in the within judgment by virtue of oral assignment is hereby given this 16th day of December, 1954, W. A. Dutton, Atty., H. H. Houtz, Deputy, Witness.' No further notice of this entry was given defendant, and another garnishment by virtue of another writ of execution on the above judgment was levied against his wages on December 17, 1954.

On December 20, 1954, there was filed a written release and satisfaction of the judgment, executed by the plaintiff. Thereupon the defendant filed his motion to dismiss the outstanding garnishment, on the grounds that defendant's wages were exempt to him as the head of a family, and that the judgment upon which the execution issued was satisfied. Appellant filed a resistance, and upon hearing the court granted the motion upon the ground that the judgment was satisfied and no proper notice of a claim for attorney's lien had been given to defendant. No ruling was made upon defendant's claim of exemption as the head of a family, and in the view we take of the case it need not be considered.

I. We are first confronted with a question of appellate procedure. Appellant says the questions on appeal are these: Did the appellant have an attorney's lien for services of which the appellee had notice; did the attorney's entry on the judgment docket constitute notice of a lien; if the appellant had an attorney's lien, could the appellee make settlement with the plaintiff judgment holder in derogation of the lien?

No errors are assigned, although the original suit and the motion and resistance thereon were clearly ordinary proceedings; that is, actions or proceedings at law. Rule 344(a)(3), Iowa Rules of Civil Procedure, 58 I.C.A., requires a statement of errors relied on for reversal when the appeal presents questions of law; and the same rule, 344(a)(4), (Third), provides that errors not stated or argued shall be deemed waived. When the case is triable de novo, the rule provides that propositions relied on shall be stated. The latter is the procedure erroneously adopted by the appellant. He states three propositions: Appellant had a lien for services rendered to plaintiff, 'and defendant-appellee had knowledge of the appellant's interest in the judgment'; the appellant's entry on the judgment docket met the requirements of section 610.18, Code of Iowa 1954, I.C.A.; and the satisfaction of judgment after the execution of the note and after the entry on the judgment docket could not defeat appellant's lien for services as plaintiff's attorney.

It is evident these propositions do not meet the requirements of assigned errors. They are not so labelled, and they do not point out the specific errors of the trial court upon which reliance for reversal is based. However, since the point is not raised by the appellee and the issues are not complicated, we have decided, as a matter of grace rather than of right, to determine the case upon its merits.

II. It will be noted that appellant bases his claim to a right of reversal solely upon his asserted lien. Every proposition stated...