Webster v. Sweat
| Decision Date | 20 May 1933 |
| Docket Number | No. 6741.,6741. |
| Citation | 65 F.2d 109 |
| Parties | WEBSTER v. SWEAT. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Chester L. Sumners, of Corinth, Miss., for appellant.
W. C. Sweat, of Corinth, Miss., for appellee.
Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.
This is an appeal by the receiver of a failed national bank from an order allowing fees to appellee as attorney for the bank prior to its failure, declaring a general retaining lien upon all notes and papers which appellee had in his possession for collection or for purposes of suit, and declaring special charging liens in cases where he had reduced the bank's claims to judgment. The amount of the fees fixed by the court is not questioned, but the order is challenged in so far as it undertakes to give any lien for attorney's fees. In several cases charging liens which were allowed upon judgments obtained by appellee were extended to land attached or sold in satisfaction of those judgments; but in each such instance the suit was brought upon notes held by the bank, and not for the recovery of or establishment of title to land. In one suit upon a judgment appellee was given a specific lien for his fee, although he ceased to represent the bank before trial. It does not appear whether he or some other attorney obtained the judgment upon which that suit was brought.
At common law an attorney has a lien on all papers of his client which come into his possession in the course of his professional employment. This lien is not limited to the papers in any particular suit, but extends to the general balance due to the attorney for any and all professional services performed by him for his client. It is passive, and ordinarily cannot be enforced by any proceeding in court, but it entitles the attorney to retain possession until all his fees are paid. Welsh v. Hole, 1 Doug. 238; Bozon v. Bolland, 4 Myl. & C. 354; Andrews v. Morse, 12 Conn. 444, and note to that case in 31 Am. Dec. 755. An attorney also has a special or charging lien which entitles him to have his fee in any particular case paid out of the judgment which he recovers. He is considered as assignee of the judgment to the extent of his fee. Bozon v. Bolland, supra; In re Wilson (D. C.) 12 F. 235; Weed Sewing Mach. Co. v. Boutelle, 56 Vt. 570, 48 Am. Rep. 821; 2 R. C. L. 1069; 6 C. J. 766. Liens of both kinds have been adopted in most of the states; and they are recognized in Mississippi, from which this case comes. Pope v. Armstrong, 3 Smedes & M. (Miss.) 214; Stewart v. Flowers, 44 Miss. 513, 7 Am. Rep. 707; Halsell v. Turner, 84 Miss. 432, 36 So. 531. Federal courts, although they recognize no common-law lien in favor of attorneys, give effect to the laws of the states in which they are held. Central Railroad & Bkg. Co. v. Pettus, 113 U. S. 117, 127, 5 S. Ct. 387, 28 L. Ed. 915. Liens arising by operation of state law prior to the failure of a national bank are not invalidated by receivership proceedings under R. S. § 5234 (12 USCA § 192). Scott v. Armstrong, 146 U. S. 499, 510, 13 S. Ct. 148, 36 L. Ed. 1059. In Martin v. Harrington, 57 Miss. 208, it was held that the attorney was not entitled...
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