Zentmire v. Brailey

• Decision Date: 24 April 1911
• Docket Number: 16,391
• Citation: 130 N.W. 1047,89 Neb. 158
• Parties: W. B. ZENTMIRE, APPELLANT, v. EDWIN F. BRAILEY, SHERIFF, ET AL., APPELLEES
• Court: Nebraska Supreme Court

130 N.W. 1047

89 Neb. 158

W. B. ZENTMIRE, APPELLANT, v. EDWIN F. BRAILEY, SHERIFF, ET AL., APPELLEES

No. 16,391

Supreme Court of Nebraska

April 24, 1911

APPEAL from the district court for Douglas county: WILLIAM A REDICK, JUDGE. Affirmed.

AFFIRMED.

Lambert & Winters, for appellant.

Gurley & Woodrough and D. O. Dwyer, contra.

OPINION

ROSE J.

The relief sought by plaintiff is an injunction to prevent the enforcement of an attorney's lien on real estate attached in a former action. D. O. Dwyer, an attorney at law, was employed by Frank Stanley to collect from John B. Dodson $ 1,760 as stipulated commission for the sale of land. Under his employment Dwyer, to collect the sum stated, began an action in favor of his client and against Dodson in the district court for Douglas county, August 12, 1908, and immediately attached a lot in South Omaha as the property of the debtor. An attorney's lien for $ 500 was filed in the case by Dwyer October 12, 1908. After a conference between Stanley and Dodson, the former dismissed his action and discharged the attachment October 27, 1908 without paying Dwyer for his services and without his knowledge or consent. This occurred when Dwyer was taking depositions at Tecumseh on behalf of his client. The court entered an order of dismissal, but did not at the time know of the existence of the attorney's lien. The same day a deed conveying the attached lot to W. P. Zentmire, Dodson's father-in-law, was filed in the office of the register of deeds. A few days later, during the term at which the case was dismissed, Dwyer intervened, procured an order vacating the dismissal and reinstating the attachment to the extent of his lien, and obtained a decree for the full amount of his fees and for the foreclosure of his lien against the attached property. Though notice of the proceedings on Dwyer's behalf was in due time served on the attorneys who had entered their appearance for Dodson, he neither appeared in person nor by counsel after the action had been dismissed. To prevent the sale of the attached property to satisfy the attorney's lien, Zentmire brought this suit in equity against Dwyer and the sheriff of Douglas county. The injunction was denied, and plaintiff appealed.

In arguing the errors assigned, plaintiff asserts: The dismissal of the action terminated the litigation between the parties thereto. There was no fraud in the proceedings. Neither party could ask for a reinstatement of the case or appeal from the judgment of dismissal. The services of Lambert & Winters as attorneys for Dodson ended when the case was dismissed. Subsequent service on them was not notice to their client, and gave the court no jurisdiction to vacate the dismissal or to reinstate the attachment. Dodson did not appear in the action at law after the case was dismissed. The attorney's lien did not bind the attached property. Zentmire was an innocent purchaser, having bought the realty after the attachment was dissolved and before it was reinstated. His rights under his purchase were not affected by the subsequent reinstatement. Plaintiff concludes, therefore, that the trial court was without jurisdiction to vacate the dismissal or to reinstate the attachment or to subject the attached property to the payment of the attorney's lien. For the reasons urged, it is insisted by plaintiff that he should be protected by injunction from the void decree. In a number of material respects these views of the law cannot be adopted.

1. Did the attorney's lien, when filed, bind the attached property? A text-writer says: "When an attachment has been made, the lien of the attachment inures to the benefit of the attorney for his fees and costs, and this cannot be defeated by any settlement made by the client with the debtor, without his consent." 1 Jones, Liens (2d ed.) sec. 232. In asserting his lien, Dwyer invoked a right granted by statute in the following language: "An attorney has a lien for a general balance of compensation upon any papers of his client which have come into his possession in the course of his professional employment; upon money in his hands belonging to his client, and in the hands of the adverse party in an action or proceeding in which the attorney was employed from the time of giving notice of the lien to that party." Comp. St. 1909, ch. 7, sec 8. This provision is declaratory of the common law, and gives an attorney a charging or specific lien upon money in the hands of the adverse party to an action. Cones v. Brooks 60 Neb. 698, 84 N.W. 85. The lien may attach to a judgment in favor of a client who is an executor, though the services were rendered on behalf of testator's estate. Burleigh v. Palmer, 74 Neb. 122, 103 N.W. 1068. A judgment in favor of prosecutrix in a bastardy proceeding may be subjected to the lien of her attorney for professional services therein. Taylor v. Stull, 79 Neb. 295, 112 N.W. 577. The reasons for subjecting such judgments to attorneys' liens apply to attachments. Dwyer, by skill and industry in asserting the rights of his client, placed the attached property in the custody of the law to satisfy a debt of the owner. While the attachment was not a judgment, it was nevertheless a lien obtained through a process of the court. If it was effective for the purpose of collecting the client's claim when the cause was dismissed, it...