Tompkins v. Nashville, C. & St. L. R.

• Decision Date: 17 January 1903
• Parties: TOMPKINS v. NASHVILLE, C. & ST. L. RY.
• Court: Tennessee Supreme Court

72 S.W. 116

110 Tenn. 157

TOMPKINS v. NASHVILLE, C. & ST. L. RY.

Supreme Court of Tennessee.

January 17, 1903

Appeal from circuit court, Davidson county; J. W. Childress, Judge.

Action by Cora A. Tompkins against the Nashville, Chattanooga & St. Louis Railway. From an order denying a petition by H. C Lassing and others, plaintiff's attorneys, to continue the suit, and to deny plaintiff's application for a dismissal, such attorneys appeal. Affirmed.

H. C Lassing and Allen & Rains, pro se. Whitaker & Lytle and A. B Neal, for appellee Cora A. Tompkins.

McALISTER J.

The present suit involves the proper construction of section 1 c. 243, Acts 1899, viz.: "That attorneys of record who begin a suit in a court of record in this state shall have a lien upon the plaintiff's right of action from the date of filing the suit." The facts necessary to be stated to raise the question in litigation are that on September 2 1902, Cora Tompkins, through her attorneys, H. C. Lassing and Messrs. Allen & Rains, instituted an action in the circuit court of Davidson county against the Nashville, Chattanooga & St. Louis Railway to recover damages for the alleged negligent killing of plaintiff's husband. A declaration was filed on the 24th of October, 1902, in which it was alleged that the deceased was killed while riding as express messenger on one of defendant's trains in the state of Georgia, and that said train was negligently brought in collision with another of defendant's trains, occupying the same track, but going in an opposite direction. It appears that the writ and declaration were signed by H. C. Lassing and Allen & Rains, as attorneys for the plaintiff. At a subsequent day of the term, the plaintiff, without notice to her counsel, caused the following motion to be entered on the motion docket of the court, viz.: "In this cause the plaintiff moves the court for an order dismissing her suit against the defendant railroad company, without prejudice in any way to her right of action against the said railroad company." Prior to the hearing of said motion, Messrs. Lassing and Allen & Rains, by leave of the court, appeared and filed a petition in said cause, alleging, among other things, that petitioners were plaintiff's attorneys of record, and, as such, instituted the suit, and had a lien on plaintiff's right of action for their compensation; that, under the contract and employment made by petitioners, they would be entitled, if case should be compromised, to one-fourth of the recovery, in lieu of fees for their services, and, if said case was prosecuted to final judgment, they would be entitled to more than one-fourth of the recovery, to be governed by the extent of services rendered, but not to exceed one-half of the recovery. It is alleged that petitioners are interested in any step or move which may be taken in said suit, and that petitioners are entitled to prosecute said suit to final judgment, because of their interest in said suit, and their lien on the plaintiff's right of action; that petitioners have not been paid for their services in said cause; and that plaintiff is insolvent, and unable to pay their fees unless she obtains a recovery in said cause. Petitioners resisted the right of plaintiff to dismiss her suit, and asked leave of the court to be allowed to prosecute said suit in plaintiff's name to final recovery, and to be made joint parties with plaintiff in said suit. This petition was signed and sworn to. On the 8th November, 1902, plaintiff, by her attorneys, Whitaker & Lytle and A. B. Neal, interposed a demurrer to the petition, which was sustained by the court, and the original suit dismissed on the motion of plaintiff. The substance of the demurrer was that counsel's lien on the right of action cannot be enforced so long as plaintiff fails or refuses to prosecute the suit, that plaintiff is alone entitled to prosecute said right of action, and that petitioners are not entitled to be made parties to said action. We are constrained to believe this contention sound. The object of the legislature in giving an attorney's lien on the right of action was to prevent the compromise and settlement of cases out of court, so as to defeat the collection of fees for professional services rendered. It was not contemplated by the act that suitors should thereby be precluded from managing their cases or dismissing them at pleasure. In Railroad v. Wells, 104 Tenn. 707, 59 S.W. 1043, in considering this statute, it is said: "The lien which the statute fixes on the plaintiff's right of action follows the transaction without interruption, and simply attaches to that into which the right of action is merged. If a judicial recovery is obtained, the lien attaches to that; if a compromise agreement is made, the lien attaches to that; and in each case the attorney's interest is such...