Robertson v. Pettery

• Decision Date: 19 September 1933
• Docket Number: (No. 7625)
• Court: West Virginia Supreme Court
• Parties: Lillian S. Robertson v. Larra Pettery

114 W.Va. 78

Lillian S. Robertson

v.Larra Pettery

(No. 7625)

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1933.

Decided September 19, 1933.

Attobney and Client

"An attorney has a lien on the judgment or decree obtained by him for his client, for services and disbursements in the case." Renick v. Ludington, 16 W. Va. 378. Where, however, the fee, by special contract is to be a percentage of the amount recovered, if any, the client is not liable for such percentage on the amount of the judgment obtained, but only on the sum he realizes on the judgment. Fisher v. Mylius, 42 W. Va. 638, 26 S. E. 309; Same v. Same, 62 W. Va. 19, 57 S. E. 276.

Appeal from Circuit Court, Kanawha County.

Proceeding by Lillian S. Robertson against Larra Pettery and another. From an adverse judgment, plaintiff appeals.

Reversed and remanded.

E. E. Robertson and Lillian S. Robertson, for appellant.

Hatcher, Judge:

The petitioner, Lillian S. Robertson, an attorney, recovered a judgment at law of $1,600 in favor of C. A. Jordan against M. D. Scott. By her contract with Jordan she "was to receive one-half of whatsoever amount, if any, was recovered by reason of said action." In a general creditors' suit brought later against Scott, his real estate was sold and purchased by Jordan at the price of $700.00. The purchaser paid no money, but was allowed to credit his judgment against Scott with $700.00. The court then entered a deficiency judgment in favor of Jordan against Scott for $1,173.07, the balance (including in- terest) remaining unpaid on the original judgment. Petitioner having received nothing on her fee, asked the circuit court to decree that she have a lien for $898.48 (her one-half of the judgment with interest and costs, etc.) first in priority against the Scott real estate purchased by Jordan and against the deficiency judgment mentioned above. The court, however, held that she was entitled to such a lien upon only an undivided one-half of the said real estate. She complains of this limitation.

There can be no question in this state of the equitable right of an attorney to have his fee secured out of a judgment or recovery he has obtained for his client. Benick v. Ludington, 16 W. Va 378; Bent v. Lipscomb, 45 W. Va. 183, 31 S. E. 907; Bank v. Bryan, 76 W. Va. 481, 487-8, 86 S. E. 8; State v. O'Brien, 89 W. Va. 634, 636, 109 S. E. 830. Where, as under the instant contract, however, the fee is a percentage of the amount recovered the client'' is not liable for such percentage of...