Pink v. Farrington, 6873.

• Decision Date: 28 June 1937
• Docket Number: No. 6873.,6873.
• Citation: 92 F.2d 465,67 App. DC 314
• Parties: PINK et al. v. FARRINGTON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

67 App. DC 314, 92 F.2d 465 (1937)

PINK et al. v. FARRINGTON et al.^*

No. 6873.

United States Court of Appeals for the District of Columbia.

Argued May 6, 1937.

Decided June 28, 1937.

Joseph A. Carey, Ralph P. Dunn, Harrell O. Hoagland, Hubert G. King, R. L. Golze, Leslie C. Garnett, and H. L. Underwood, United States Attorneys, all of Washington, D. C., for appellants.

W. Gwynn Gardiner and James M. Earnest, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

GRONER, J.

This suit was instituted in the District Court by appellees as plaintiffs against E. W. Clark, receiver of the Southern Surety Company of Iowa, the Secretary of the Treasury, the Treasurer of the United States, and the Comptroller General of the United States. Its purpose was to restrain the Secretary of the Treasury, the Treasurer, and the Comptroller General from disbursing the fund appropriated by Congress to pay a judgment for $25,707.15 recovered by Southern Surety Company of Iowa in the Court of Claims. The bill sought to establish an attorney's lien on the fund for professional services rendered by plaintiffs on behalf of the Southern Surety Company of Iowa in the procurement of the judgment. There were various preliminary proceedings including the intervention of new parties, which it is not necessary here to notice. The case was finally matured for hearing on the merits, and at the conclusion the court below entered a decree for plaintiffs for the amounts claimed by them respectively. This appeal is from that decree.

There are fifteen assignments of error, but in the view we take of the case we need only mention the first two. These are:

(1.) The court below erred in holding and decreeing that plaintiffs below are entitled to have an attorney's charging lien for their services impressed upon the fund appropriated by Congress for the payment of the judgment obtained by the Southern Surety Company of Iowa in the Court of Claims; and

(2.) The court erred in holding and determining that plaintiffs below had or have any lien, equitable or otherwise, upon the fund herein involved.

The trial judge found as a fact (5):

"The employment of the plaintiff firm to prosecute the claim of said Southern Surety Company of Iowa was made orally and without specific agreement as to the amount of its fee. The plaintiff Farrington was employed by said firm, acting through its member, J. L. Parrish, Sr., on the basis of a $50.00 per diem, and thereafter the Southern Surety Company of Iowa executed and delivered to the plaintiff, Marvin Farrington, a power of attorney, which was filed by him in the United States Court of Claims pursuant to its rules."

The undisputed evidence shows that none of the plaintiffs had any agreement with the surety company for an assignment of any part of the fund recovered, nor any agreement for a lien thereon. The firm of Parrish, Cohen, Guthrie & Watters were the general counsel of the surety company. Mr. Guthrie of the firm testified his firm was on a yearly retainer basis for general services but received a per diem compensation for services such as those involved here, and Mr. Farrington, the Washington attorney, was associated by the Iowa firm under an arrangement for $50 per day "and if this case goes as I think it will, one of the partners told Farrington of course, the fee will be made reasonable."

After the Court of Claims judgment, the Iowa company became insolvent and was placed in the hands of a receiver, and in that proceeding plaintiffs proved their respective claims. Their claims were allowed, and on each a small dividend was paid.

In view of the undisputed facts that plaintiffs' employment was wholly on a quantum meruit basis; was not expressly or by implication agreed to be secured by a lien on the fund; was not agreed to be paid out of the fund; and that counsel looked wholly to the personal responsibility of the client for payment, we are of the opinion that the claim for a lien on the fund cannot be sustained.

At common law an attorney had what is known as a charging lien on the judgment or decree obtained for his client for services rendered in procuring it to the extent of his taxable costs and expenses. In many of the United States an attorney's charging lien is created by statute, and is, of course, limited by its terms. In some of the states in which there is no statute the attorney's lien has been extended by court decision to cover reasonable compensation for his services, and in those jurisdictions it is held that such lien may be enforced by resort to equity.

In the District of Columbia there is no statute, but the rule on the subject has been stated to be that it is an indispensable condition to the establishment of an attorney's lien on a particular fund — not in possession — that there should be a distinct appropriation of the fund by the client, or an agreement that the attorney should be paid out of it. This rule is now the established law in this jurisdiction. In Hutchinson v. Worthington, 7 App.D.C. 548, we held in a case in which the contract was that the attorney...