People to Use of Simon v. Pack

• Decision Date: 16 February 1898
• Citation: 74 N.W. 185,115 Mich. 669
• Court: Michigan Supreme Court
• Parties: PEOPLE, TO USE OF SIMON ET AL., v. PACK ET AL.

74 N.W. 185

115 Mich. 669

PEOPLE, TO USE OF SIMON ET AL., v. PACK ET AL.

Supreme Court of Michigan

February 16, 1898

Appeal from circuit court, Alpena county; Robert J. Kelley, Judge.

Action by the people, for use and benefit of Sigmund Simon and another, against Albert Pack and others, on official bond of sheriff. The action was settled and discontinued by stipulation. One of plaintiffs' attorneys having given notice of attorney's lien claimed by him, the stipulation discontinuing suit was struck from files, and case tried, and verdict returned for plaintiffs for amount of attorney's lien. Both parties appeal. Judgment affirmed.

Sloman & Groesbeck, for plaintiffs.

J. H Cobb (Moore & Moore, of counsel), for defendants.

I. S Canfield, in pro. per.

LONG J.

Plaintiffs who were in May, 1894, doing business in Detroit, under the firm name of S. Simon & Co., became joint mortgagees with the firm of Heavenrich Bros. in a mortgage given by Kositcheck Bros., of Alpena. In June of the same year, the sheriff of Alpena county, through his deputy attached the mortgaged property in an action brought by other creditors against the Kositchecks. Plaintiffs and Heavenrich Bros. brought separate actions of trover against the sheriff and the attaching creditors, in which plaintiffs recovered a judgment for $3,267. Plaintiffs, being unable to collect their judgment, brought this action in the Alpena circuit upon the sheriff's official bond. While this action was pending, the defendants paid to plaintiffs the amount of the judgment, interest, and cost, less $500, which was retained notice having been given them by I. S. Canfield that he claimed an attorney's lien for the sum of $425 on such judgment and the judgment in the Heavenrich case. Thereupon plaintiffs assigned their judgment to Comstock, one of the defendants, who was a surety upon the said sheriff's bond. At the same time, plaintiffs, through Sloman, Groesbeck & Robinson, their Detroit attorneys, stipulated with defendants' attorney for the discontinuance of the suit; but no order of discontinuance was ever entered. It appears that Mr. Canfield, an attorney residing at Alpena, had been employed in June, 1893, through Sloman & Duffie, for plaintiffs, to assist them in the litigation against the defendants in those lien suits. Canfield, as plaintiffs' attorney, had demanded the mortgaged property, and, being refused, commenced the trover suit, signing, under instructions, the writ by which such suit was commenced, "Sloman & Duffie, Attorneys for Plaintiffs, Frank Emerick and I. S. Canfield, of counsel." Sloman & Duffie drew the declaration in said cause, signing and indorsing the same in like manner, and sent it to Canfield for filing and service. The notices of retainer and plea in both of said causes were directed to and served upon Canfield, who noticed the cases for trial, filed notes of issue with the clerk, opposed the...