State ex rel. Shannon v. Hendricks Circuit Court

• Decision Date: 22 June 1962
• Docket Number: No. 30216,30216
• Citation: 183 N.E.2d 331,243 Ind. 134
• Parties: STATE of Indiana on Relation of Joseph M. SHANNON, Relator, v. HENDRICKS CIRCUIT COURT, Hendricks County, Indiana, and Richard J. Groover, The Judge Thereof, Respondents.
• Court: Indiana Supreme Court

Page 331

183 N.E.2d 331

243 Ind. 134

STATE of Indiana on Relation of Joseph M. SHANNON, Relator, v. HENDRICKS CIRCUIT COURT, Hendricks County, Indiana, and Richard J. Groover, The Judge Thereof, Respondents.

No. 30216.

Supreme Court of Indiana.

June 22, 1962.

Joseph M. Shannon, pro se, Indianapolis,

McNutt, Hurt & Blue, Martinsville, for respondents.

BOBBITT, Judge.

Relator seeks a writ of prohibition restraining respondents from exercising further jurisdiction in Cause No. 21837 in the Hendricks Circuit Court, wherein Daisy Jo Maxwell (now Daisy Jo Maxwell Stanley) was plaintiff and James D. Maxwell was defendant, in the enforcement of a contempt citation order. We issued a temporary writ.

The factual situation which gives rise to the action here is, briefly, as follows:

Relator herein represented one Daisy Jo Maxwell as her attorney, on a contingent fee basis, in the divorce action of Maxwell v. Maxwell, originally filed in the Morgan Circuit Court. After the happening of certain events which are not here important, the case was venued and retried in Hendricks County, Indiana, as Cause No. 21837 in the Hendricks Circuit Court.

Daisy Jo Maxwell was granted a divorce and relator and Grafton J. Kivett, an attorney of Martinsville, Indiana, who represented the defendant, James D. Maxwell, in the divorce action, were appointed Commissioners for the purpose of selling certain real estate and carrying out the stipulation and agreement pursuant to the property settlement.

The Commissioners' final report was filed on November 3, 1961. On December 7, 1961, an order was entered by Richard J. Groover, Judge of the Hendricks Circuit Court, approving such final report, and discharging relator and his co-commissioner, Kivett, from any further duties and liabilities 'in connection with said trust.'

Relator received from himself and Kivett, as Commissioners, the total sum of $35,149.33, as the amount recovered in the property settlement for and on behalf of Daisy Jo Maxwell, in the form of two certified checks payable to Daisy Jo Maxwell and relator in the total sum of $34,829.33, and $320 in cash.

Relator not having been paid his fee for services rendered in the divorce action and in connection with the property settlement, retained possession of the certified checks and money which he received.

On or about February 8, 1962, a motion for an order directing relator to pay over to Daisy Jo Maxwell Stanley the moneys received by him in his capacity as her attorney in the divorce action was filed in the Hendricks Circuit Court. On February 8, 1962, an order was entered directing relator, Joseph M. Shannon, to pay over the funds he was then holding to Daisy Jo Maxwell Stanley, or show cause why he should not be punished for contempt of court.

On February 13, 1962, relator filed his reply affidavit in response to such order in which he stated that he was exercising an attorney's lien on said funds until his attorney fees, out-of-pocket expenses and filing fees and miscellaneous costs were paid by Daisy Jo Maxwell Stanley to relator.

On February 17, 1962, respondents entered an order finding relator guilty of contempt of court, and ordering him to pay over to said Daisy Jo Maxwell Stanley said funds and to pay costs incidental to the contempt proceedings.

The petition for writ of prohibition in this court followed.

Respondents assert jurisdiction of the subject matter of the action here upon two grounds: (1) under Acts 1881 (Spec. Sess.), ch. 38, § 843, p. 240, being § 4-3615, Burns' 1946 Replacement, which provides:

'When an attorney, on request, refuses to deliver over money or papers to a person from whom or for whom he has received them in the course of his professions employment, whether in an action or not, he may be required, after reasonable notice, no motion of any party aggrieved, by an order of the court in which an action, if any, was prosecuted (or if no action was prosecuted, then by the order of any court of record) to do so, within a specified time, or show cause why he should not be punished for contempt.';

and (2) that relator did not follow the statutory procedure for exercising an attorney's lien.

Relator asserts that § 4-3615, supra, is not applicable to the factual situation here, and that he is exercising a retaining lien supplied by equity independent of the statute. ¹

If relator is exercising a valid retaining attorney's lien, then he is not refusing 'to deliver over money' to a person for whom it was received within the meaning of § 4-3615, supra, and respondents were without authority to cite him for contempt for failure to surrender the money of which he has possession.

The $35,149.33, which he holds, was recovered by the aid of relator and through his efforts as attorney for Daisy Jo Maxwell.

Section 4-3615, supra, 'does not attempt to cover the question of liens upon funds secured by the client through the aid of his employed attorney, and by other steps than a judgment.' Koons, Administrator, et al. v. Beach (1897), 147 Ind. 137, 140, 45 N.E. 601, 46 N.E. 587.

The rule is well established in Indiana that the statutory lien is not the only lien available for the security of an attorney in performing services beneficial to his client, but that equity supplies a lien independent of statute. Justice v. Justice (1888), 115 Ind. 201, 208, 16 N.E. 615; Koons, Administrator, et al. v. Beach, supra (1897), 147 Ind. 137, 139-140, 45 N.E. 601, 46 N.E. 587.

An attorney has a right to apply money collected for his client upon the fees due him for making such collection; The Union Mutual Life Insurance Company v. Buchanan (1885), 100 Ind. 63, 79-80; and in the present case relator had a right to retain his fees out of the moneys which he received from the Commissioners as his client's (Daisy Jo Mazwell) share of the property settlement which had been recovered by his aid and through his efforts as her attorney. Puett, et al. v. Beard, et al. (1882), 86 Ind. 172, 174, 44 Am.Rep. 280; Koons, Administrator, et al. v. Beach, supra (1897), 147 Ind. 137, 140, 45 N.E. 601, 46 N.E. 587.

'A retaining lien is the right of the attorney to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for professional services is paid.';

7 C.J.S. Attorney and Client § 210, p. 1141; and exists as long as the attorney retains possession of the subject matter. 7 C.J.S. Attorney and Client § 217, p. 1161.

Lane v. Campbell (1938), 214 Ind. 376, 14 N.E.2d 552, upon which respondents rely to support their claim of jurisdiction, concerned money which had been delivered to appellant-Lane to discharge certain orders against the client. This money did not consist of a fund which Lane had recovered through his aid and efforts, but was the sole property of the client. No question of attorney's lien was involved and the Lane case is clearly distinguishable from the present case. It correctly states the law as applied to the facts of that case, but lends no support to respondents' position here.

Since relator retailed a lien for his attorney fees and costs advanced upon the $35,149.33 received from the Commissioners as the amount recovered in the divorce action, both relator and Daisy Jo Maxwell Stanley held an undivided interest in the fund, and it was not 'money received in the course of his [relator's] professional employment' for the sole benefit of a client, nor was it money received by relator for the client, Daisy Jo Maxwell Stanley, the title to which rested wholly and exclusively in her.

The statute does not contemplate that an attorney may be cited for contempt of court for failure to pay over to his client moneys upon which he is retaining a lien for his legal services.

The facts as shown by the record here do not bring the present case within the contempt citation provisions of § 4-3615, supra.

The filing of a motion pursuant to § 4-3615, supra, is a special statutory proceeding, and in order to invoke its provisions the jurisdictional facts required by the statute must be shown. State ex rel. Ayer v. Ewing (1952), 231 Ind. 1, 5, 106 N.E.2d 441.

Since the facts shown by the record here are not such as to sustain a citation for contempt under the provisions of the statute, the respondents were without jurisdiction to issue to citation herein, and the alternative writ of heretofore issued will, therefore, be made permanent.

Alternative writ heretofore issued is made permanent.

ARTERBURN, C. J., and JACKSON and LANDIS, JJ., concur.

ACHOR, J., dissents with opinion.

ACHOR, Judge (dissenting).

I cannot concur in the majority opinion for three reasons: First, because of relator's failure to comply with Rule 2-35 of this court; second, because, in my opinion, it does not appear from relator's petition that he is in a position where, in equity, he is entitled to the extraordinary...