McCarthy v. McCarthy, 33.
| Decision Date | 05 October 1934 |
| Docket Number | No. 33.,33. |
| Citation | 174 A. 751 |
| Parties | MCCARTHY v. MCCARTHY et al. |
| Court | New Jersey Supreme Court |
Syllabus by the Court.
1. The Attorneys' Lien Act (P. L. 1914, p. 410 [Comp. St. Supp. 1924, § 116—76]) does not apply to a solicitor who files a counterclaim on behalf of a husband defendant in a divorce action seeking the return of property in the possession of the complainant wife.
2. When a solicitor successfully establishes his client's right to property, receives the property in question, and turns it over to his client, he thereby waives any claim to a lien under the Attorneys' Lien Act.
3. In a case such as this, the Court of Chancery has no power to fix a counsel fee to be paid the solicitor by his client and to decree a lien on the property involved in the litigation.
Appeal from Court of Chancery.
Suit by Elizabeth Burns McCarthy against Edward McCarthy, wherein defendant filed a counterclaim, and wherein George W. V. Moy, filed petition seeking to establish an attorney's lien against the defendant. Prom a decree for the petitioner George W. V. Moy, defendant appeals.
Reversed.
McCarter & English, of Newark, for appellant.
George W. V. Moy, of Plainfield, pro se.
The question on this appeal is whether or not, in the situation presented, the respondent, Moy, who was solicitor for appellant, Edward McCarthy, in a divorce proceeding in the Court of Chancery, in which McCarthy filed a counterclaim and had a decree for the return to him of real and personal property held by his wife, is entitled to a decree for fees under the Attorneys' Lien Act of 1914 (P. L. 1914, p. 410 [Comp. St. Supp. 1924, § 116 —76]) on the property mentioned.
The record discloses that Elizabeth B. McCarthy filed a petition for divorce, to which the defendant answered and counterclaimed for the return of property conveyed and assigned by him to his said wife.
On October 16, 1933, final decree was entered dismissing the petition for divorce and granting the prayer of the counterclaim and directing the petitioner to transfer certain life insurance policies and securities and to reconvey real estate to the defendant. The undisputed proof is that all this was done. The personal property was delivered to Moy, who, in turn, handed it over to McCarthy, and the real estate was conveyed to McCarthy; the deed therefor being delivered by Moy to McCarthy, who had it recorded.
Several months after the decree referred to, and after the delivery of the personal property to appellant, Moy presented a petition to the Court of Chancery Seeking to enjoin McCarthy from disposing of the property in question and to have a decree for his counsel fees for services rendered to appellant, and to impress a lien on said property for the amount thereof. An order to show cause was made, with restraint. Appellant filed his verified answer, and, upon the return of the order to show cause, the court made the decree appealed from, in and by which the court ordered that the appellant, within ten days after service of such decree, pay to the petitioner-respondent a counsel fee of $3,000, together with the sum of $47.82 for expenditures, and that, in default of such payment, execution issue therefor according to the practice of the court, against the goods and chattels, land, tenements, hereditaments and real estate of the defendant; and that the allowance be declared and ordered to be a lien upon the property of the defendant, real and personal, described in the final decree in the original proceeding; the restraint against conveying any of such property continuing, except so far as to permit appellant to realize from his insurance policies and securities sufficient moneys to satisfy the order for counsel fees and disbursements.
The advisory master who advised the order decided that the act of 1914 was applicable, and so states in his memorandum.
The act in question is as follows:
This act does not sustain...
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