Lyman v. Campbell

• Decision Date: 22 May 1950
• Docket Number: No. 10412.,10412.
• Citation: 182 F.2d 700
• Parties: LYMAN v. CAMPBELL et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

182 F.2d 700 (1950)

LYMAN v. CAMPBELL et al.

No. 10412.

United States Court of Appeals District of Columbia Circuit.

Argued March 10, 1950.

Decided May 22, 1950.

Mr. Joseph J. Lyman, Washington, D. C., pro se.

Mr. Lyle M. Turner, Special Assistant to the Attorney General, of the Bar of the Supreme Court of Missouri, pro hac vice, by special leave of Court, with whom Messrs. Ellis N. Slack, Special Assistant to the Attorney General, and George Morris Fay, United States Attorney, Washington, D. C., were on the brief for appellee United States of America.

Messrs. Joseph M. Howard and Joseph F. Goetten, Assistant United States Attorneys, Washington, D. C., also entered appearances for appellee United States of America.

No appearance for appellee Campbell.

Before PRETTYMAN, PROCTOR and WASHINGTON, Circuit Judges.

WASHINGTON, Circuit Judge.

This appeal is by an attorney who seeks to establish and enforce an attorney's lien. The record is meagre. Appellant's description of the facts is as follows: "On April 29, 1946, five plaintiffs filed an action against the United States to recover an overpayment of Social Security taxes erroneously assessed and collected. The United States answered denying the overpayment. The plaintiffs were represented by the appellant, who entered into contingent fee arrangements with the plaintiffs. No counterclaim was filed by the United States. In November, 1948, the United States consented to make the refunds and checks were drawn on the Treasury of the United States to the order of each of the plaintiffs for the amounts due them. The refund checks were delivered to each of the plaintiffs except one, Vollmer H. Campbell. He was directed by the Collector of Internal Revenue to indorse his check and was advised that the full amount, $1,105.06, would be applied to his alleged deficiency in Federal income tax payments which was then and is now in litigation in the Tax Court of the United States. When appellant learned of the Collector's intended action, he filed a formal notice of his attorney's lien. Subsequent to the filing of this notice, the Collector applied the proceeds of Campbell's check, including that portion constituting appellant's lien to Campbell's alleged deficiency. On March 9, 1949, appellant and government counsel appeared before the pre-trial judge to dispose of the case since the United States had consented to make the refunds of taxes. At that time appellant moved orally for recognition and enforcement of his attorney's lien. Appellant's motion was denied on the ground that the recognition of such lien would be tantamount to a judgment against the United States and the court was without jurisdiction to pass upon the matter. Later, on June 2, 1949, the pre-trial judge, on his own motion dismissed the case for want of prosecution. The court took the position that all the refunds had been made although it had ruled on March 9, 1949, that plaintiff Vollmer H. Campbell had not yet received his refund. This appeal is taken from the order of March 9, 1949 only; the order of June 2, 1949, dismissing the case for want of prosecution, had no effect upon appellant's rights and is not considered here."

At oral argument, it further appeared that after the refund check had been prepared, the Collector's office notified Campbell that the check was ready, but that by reason of the income tax deficiency it would be canceled and not delivered — unless Campbell would agree to receive it only momentarily, for the purpose of endorsing it and returning it to the Collector to be applied against the income tax claim. Campbell appeared at the Collector's office, and this procedure was carried out. There is no suggestion that the Collector's office was motivated by anything other than a desire to avoid making a payment to a taxpayer who was regarded as being indebted to the United States, in a larger amount, for an income tax deficiency. Nor is it suggested that Campbell acted with the purpose of defeating the attorney's claim, or colluded to that end.¹

Viewing the situation in the light most favorable to the appellant, and assuming that Campbell took the action described above after the filing of the "notice of lien" in the District Court, but against the advice of his counsel, or even without counsel's knowledge, we must nevertheless conclude that appellant's motion for enforcement of a lien was properly denied.

At common law there were two types of attorney's liens: The retaining lien and the charging lien. The retaining lien attached to the papers and moneys of the client, coming into the possession of the attorney in the course of his employment and as a part of the litigation. A bond or check coming in that fashion into the attorney's possession might well be made the subject of a retaining lien. See McPherson v. Cox, 96 U.S. 404, 417, 24 L.Ed. 746. But such a lien is passive, and is dependent upon the attorney's obtaining and keeping possession. Lamont v. Washington & G. R. R. Co., 2 Mackey, D.C., 502, 47 Am.Rep. 268. See, also, Brown, Personal Property (1936) § 115. The appellant here does not appear to...