Reynolds v. Warner

• Decision Date: 30 January 1935
• Docket Number: 29029.
• Parties: REYNOLDS ET AL. v. WARNER ET AL. (COURTRIGHT, SIDNER, LEE & GUNDERSON, INTERVENERS).
• Court: Nebraska Supreme Court

258 N.W. 462

128 Neb. 304

REYNOLDS ET AL. v. WARNER ET AL. (COURTRIGHT, SIDNER, LEE & GUNDERSON, INTERVENERS).

No. 29029.

Supreme Court of Nebraska.

January 30, 1935

Syllabus by the Court.

1. An attorney has a general, retaining or possessory lien upon all papers of his client coming into his hands in the course of his professional employment.

2. Possession is essential to the creation and existence of an attorney's possessory lien and ends with surrender of possession.

3. An attorney has a lien for a general balance of compensation upon money in the hands of an adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party.

4. Under section 7-108, Comp. St. 1929, an attorney's charging lien is confined to fees and costs due for services rendered in the particular case in which it is sought to enforce the lien.

5. Where there is a misjoinder of causes of action apparent on the face of the petition, failure of adverse party to challenge such misjoinder of causes by a proper pleading waives the defect.

6. Where there is no equitable relief granted, a court of equity will generally decline jurisdiction to enter a money judgment on a legal cause of action.

7. The constitutional right to a trial by jury cannot be defeated by an allegation of an equitable cause of action which does not exist.

Appeal from District Court, Cheyenne County; Tewell Judge.

Action by Susan E. Reynolds, executrix, and Cassius A. Reynolds executor, of the estate of Cassius S. Reynolds, deceased against Joy M. Warner and others, wherein Wilson B. Reynolds and Cassius J. Reynolds were substituted as plaintiffs and wherein Mary A. Reynolds was made an additional defendant on a petition of intervention by Courtright, Sidner, Lee & Gunderson, and wherein the substituted plaintiffs filed a cross-petition against the interveners. From an adverse judgment, the interveners appeal.

Affirmed.

Courtright, Sidner, Lee & Gunderson, of Fremont, for appellants.

Cook & Cook, of Fremont, and G. P. Kratz, of Sidney, for appellees.

Heard before GOSS, C. J., ROSE, GOOD, EBERLY, DAY, and PAINE, JJ., and RAPER, District Judge.

DAY Justice.

The executors of the estate of Cassius S. Reynolds by their attorneys Courtright, Sidner, Lee & Gunderson, the interveners here, commenced a suit to foreclose a mortgage on real estate against Warner in Cheyenne county. This asset was assigned to Wilson B. Reynolds, Cassius J. Reynolds and their sister. The sister assigned it to her two brothers. The assignments were placed in the hands of the interveners as attorneys with instructions to proceed with the case. The attorneys filed a lien for fees and expenses in this case and for fees in other cases in Dodge county. The Reynolds brothers then assigned their interest in the decree to their mother, who was made an additional defendant upon a petition of intervention by the attorneys to enforce an attorney's lien. The fees in the Cheyenne county foreclosure case were paid. A small amount was due for costs and expenses at the time this petition of intervention was filed but was paid prior to the taking of any depositions in the case. In their answer, Reynolds brothers alleged that all fees were paid and that they stood willing to pay the expenses upon receiving information as to the amount; that the court was without jurisdiction to decree that the interveners are entitled to a lien upon the amount owing on said decree for fees claimed to be earned in Dodge county cases; that the interveners were not entitled to any fees for that the interveners wrongfully abandoned the case at a critical stage to their damage. The Reynolds brothers prayed judgment against the interveners for the damages sustained by the wrongful abandonment of the case by the interveners. The interveners filed an answer to cross-petition in which they alleged that terminating their employment was not wrongful; that they withdrew as attorneys for Reynolds brothers in the Dodge county case because they had not been paid, and the financial condition of the Reynolds brothers was such that it did not seem likely that they would be paid; that the Reynolds brothers were not damaged by the action of the interveners.

The trial court held that an attorney cannot enforce an attorney's lien upon money in the hands of an adverse party other than for services performed by him in that particular case and that the fees claimed for services rendered in cases in Dodge county could not be enforced as a lien in this Cheyenne county case; that the fees in the Cheyenne county case were paid prior to filing the petition of intervention and that the costs and expenses were paid before the expense of taking depositions had been incurred; that the court could not enter a judgment for the reasonable value of attorney fees in the Dodge county cases for that it did not have jurisdiction to enter a judgment.

This case presents two issues for our determination: First, are the interveners entitled to a lien upon the amount owing by Warner on the judgment in Cheyenne county for fees claimed in Dodge county cases? Secondly, if the first issue is decided in the negative, are the interveners entitled to a judgment in this case against Reynolds brothers for fees claimed in Dodge county cases?

An attorney's lien upon a judgment obtained by him is allowed and regulated by statute. Vanderlip v. Barnes, 101 Neb. 573, 163 N.W. 856. Section 7-108, Comp. St. 1929, provides for an attorney's lien as follows: " An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party."

The interveners did not have what is often termed a possessory lien for fees in this case. True, they did at one time have in their possession the assignments of the mortgages in their possession, but they filed them in making proof for the purpose of securing the decree of foreclosure. An attorney has a general, retaining or possessory lien upon all papers of his client coming into his hands in the course of his professional employment. But such a lien depends upon possession and attaches only to papers actually in his possession. He cannot enforce by action such a lien upon a note or other obligation to pay money, because the lien attaches only to the evidence of the debt and not to the money in the hands of the debtor. Cones v. Brooks, 60 Neb. 698, 84 N.W. 85.Where an attorney files papers in his possession in court for the purpose of procuring a judgment he surrenders his right to possessory lien. He has his choice of action at the time, either to retain the papers and his lien or to give up the papers and surrender his lien. A recognized authority states the rule substantially to be that " possession is essential to the...