Sanders v. Seelye

• Decision Date: 16 May 1889
• Citation: 21 N.E. 601,128 Ill. 631
• Parties: SANDERS v. SEELYE et al.
• Court: Illinois Supreme Court

128 Ill. 631

21 N.E. 601

SANDERS

v.SEELYE et al.¹

Supreme Court of Illinois.

May 16, 1889.

Appeal from appellate court, First district.

This was a petition filed by Joshua C. Sanders in the circuit court of Cook county against Henry E. Seelye, John H. S. Quick, and John S. Miller, who had been attorneys for said Sanders in the suit of Peck v. Chicago & Great Western Railroad Land Co. The petition prayed for a rule against said attorneys to compel them to surrender 195 bonds of said land company, which had been placed in their hands by said Sanders, and on which they claimed a lien for professional services in said suit, in which Sanders had recovered property worth $100,000. The circuit court decreed that defendants were entitled to a lien on the bonds. The appellate court, on appeal, affirmed the decision, and the petitioner again appeals.D. T. Corbin

, for appellant.

D. J. Schuyler and H. E. Seelye, for appellees.

WILKIN, J.

The case of Land Co. v. Peck (a statement of which will be found in 112 Ill. 414, 430) having been reversed and remanded by this court, and pending in the circuit court of Cook county, a dispute arose between appellant and appellees, his former attorneys, as to the fees of the latter, and out of that controversy grew the further one as to whether or not appellees were entitled to a lien upon the 195 bonds of appellant involved in the Pack suit. Appellant, having discharged said attorneys, tendered them $175 in full of all fees due them, and demanded the surrender of the bonds, which being refused, he filed this petition for a rule on them to surrender and deliver up the same to him. Upon being ruled to show cause why they should not be required to do so, respondents set up a retaining lien for fees, which they claim were due and unpaid from petitioner, for services rendered by them in said cause; appellants Quick & Miller claiming $5,000 for such services in the appellate court of the First district and the supreme court, and $500 for services after the reversal, and before they were finally discharged. No special claim for fees was made by respondent Seelye in the answer, but it was averred that he had rendered services in said cause in connection with said Quick & Miller. Before the master he presented an account for professional services performed for appellant, generally aggregating $3,650. The cause having been referred to the master to take and report the evidence, together with his conclusions, he made his first report, by which he found that there was due Quick & Miller $5,500, and Seelye $2,840, and also reported that they were entitled to a retaining lien upon the bonds for those amounts. On exceptions to this report the circuit court held that Quick & Miller were only entitled to the sum of $300 for services in the appellate court, by the terms of an express agreement between themselves and Seelye on the one part and appellant on the other; that in addition to that amount they were entitled to $500 for services performed after the reversal in the supreme court. It was also held upon that hearing that they were entitled to compensation for their services in the supreme court upon the quantum meruit, there being no contract between the parties as to what should be paid therefor; and the cause was again referred to the master to take evidence, and ascertain the value of such services. As to that part of the master's report allowing Seelye $2,840 no objection was made, because it was not claimed in the answer, but the objection then urged was that the allowance was greater in amount than the evidence justified, and the court, upon consideration thereof, reduced it to $1,205. On the coming in of the master's second report, by which he found the value of the services of Quick & Miller in the supreme court to be $5,000, further exceptions were heard; and it was finally determined and ordered that Quick & Miller be allowed the sum of $4,950, and Seelye $1,158.25, and that they each have a retaining lien upon said bonds until said amounts should be paid. Sanders having appealed, appellees filed cross-errors in the appellate court, by which they sought to question the correctness of the decree below, in not allowing them the full amount reported by the master. The appellate court having affirmed the decree below, Sanders appeals to this court. The cross-errors are not insisted upon here, and we have therefore only to consider the grounds of reversal insisted upon by appellant. Numerous errors are assigned on his behalf, each of which is made a point in the argument. Many of them are mere criticisms upon the opinion of the appellate court, and are in no proper sense assignments of error on the record. We think the merits of the case may be fully and fairly considered under three heads, viz.: First. Has an attorney a retaining lien in this state, as a matter of law? Second. Are the facts essential to the existence of such a lien established by the proofs in this case? Third. Does the evidence justify the decree as to the amounts found due?

Attorney's liens are classed as general or retaining liens, and charging or special liens. The first attaches to all papers, decuments, etc., which he receives professionally; the second, only upon that which is recovered through his professional services. This latter right of lien has been denied by this court in several cases. In Humphrey v. Browning, 46 Ill. 476, it was held that he had no lien upon real estate recovered in ejectment; in Forsythe v. Beveridge, 52 Ill. 268, that he had no such lien upon a judgment recovered; and so in each of the other cases cited by counsel it was held that no lien existed in his favor upon the subject-matter of the suit. Although expressions are used in the opinions in some of these cases which seem to deny an attorney's right to the retaining lien also, in none of them was that question before the court, nor was it decided. It is now, therefore, to be treated as an open question in this state. That it is a well-established common-law right must be conceded. Stevenson v. Blakelock, 1 Maule & S. 535; St. John v. Diefendorf, 12 Wend. 261;Dennett v. Cutts, 11 N. H. 163;Walker v. Sargeant, 14 Vt. 247;Ward v. Craig, 87 N. Y. 551. No reason is perceived for denying the existence of that right in this state. There is nothing in our statute which changes the common-law relations between attorneys and their clients in such a manner as to affect this right; nor are we able to see wherein this rule of the common law is inapplicable to ‘the habits and conditions of our society, or contrary to the genius, spirit, and objects of our institutions.’ We therefore hold that in a proper case an attorney in Illinois may legally maintain such a lien.

Passing to the next question, the authorities seem to be uniform in holding that this retaining lien exists on all papers or documents of the client placed in the attorney's hands in his professional character, or in the course of his professional employment, (Stokes, Liens, Attys. 67; Weeks, Attys. § 372, p. 614; Whart. Ag. § 625; Story, Ag. § 383,) and it makes no difference what the purpose may have been in placing them in the attorney's hands, (Weeks, Attys. § 372, supra; Whart. Ag. § 625, note 1.) Did the bonds in question come into the possession of appellees within the meaning of these rules? It is insisted that they were left with Seelye merely for safe-keeping, subject to appellant's orders, and that their deposit with him had no connection with either his or Quick & Miller's professional employment in the Peck Case. This position is wholly inconsistent with the remedy appellant is now seeking to enforce. If Seelye was a mere custodian of these bonds for safe-keeping, and held them only subject to appellant's order, by what authority can the circuit court of Cook county, in the Peck Case, make an order requiring respondents to show cause why they do not surrender them? We think, however, that the evidence is clear to the effect that they were placed in the hands of Seelye as the attorney of appellant in the Peck Case, so that they might be used in securing to the client the benefits resulting to him from the successful litigation of that case in the supreme court; and, whatever may have been appellant's understanding as to the amount of fees to be paid, it cannot be claimed that he did not fully understand that Quick & Miller and Seelye were acting together as his attorneys in that case. Therefore, whether the bonds were delivered to Seelye alone, or to him and Quick & Miller jointly, the lien would attach for the benefit of all. It is also clear from the evidence that appellant knew that these bonds had been deposited by Seelye in the safe of Quick & Miller, and that they claimed a lien upon them for their services; and with such knowledge he permitted them to remain in their possession, retaining them thereafter in the further management of said cause. We are of the opinion, therefore, that the circuit court was justified in holding that said bonds were subject to a lien in favor of appellees for any balance due and unpaid them for their fees as the attorneys of appellant.

That there was a balance of $500 due Quick & Miller is not controverted, and the exceptions filed to the master's report, allowing Seelye certain fees, must be held to amount to an admission that there was something at least due him. In the exception it is said he should only have been allowed $805, and it was admitted that of that amount but $475 had been paid, but it was attempted to charge him with $160, money and accrued interest, furnished to pay taxes, for which it was claimed he had failed to account, thus leaving a balance of $270; and it was sought to liquidate this amount by...