I'EDEBAL REPOBTIm t
FOSTER v. DANFORTH. Court, D. Vermont. February 19, 1894.)
The satisfaction ofa jUdgment between the parties cannot prejudice the lien of the attorney for services rendered in the procurement of sucb jUdgment; and ,execution may issue, notwithstanding, for the balance hiin. "
OF JUDGMENT INTER PARTES.
2. SAME-:'ATTORNEl' OF
Such lien exists, however, only in favor of the attorney of record recognized as such by the rules of the court in which he brings the suit, and its benefit not extend toattorueys employed to advise and assist him.
In, settle1llent of certain suits, it was agreed that the fees of the attorney' for the plainti1fs should be included in the compensation to be rece1vedby him In a suit which he was to bring on behalf of the defendant therein l in case judgment should be in his favor. Judgment was duly recovered, and ,the attorney claimed a lien thereon for his compensation, lncludingthefeell.in the tormer suits.' Beld, that tbese fees were not due in recovered, and the agreement under which they" were to be' paid created no lien on such judgment.
At Law.A;uqita querell:J.:sued out by William}i'Qster, Jr., against 4,l.I1mi L Danfqrth. ,Judgment fortlefendant, as to part, and for plaintiff as to ,the F. G. Swmingfuil, for plaintiff. Charles n./Darling, for Mason and Sheldon. WHEELER, Distnct Judge. This is an audita querela brought to set asidea1\i iexecutionissued on a judgment recovered in this 'court by Sa'V'age&. Danforth, of whOm the defendant is survivor, against the plaintiff, because the judgment has, been satisfied between the panties. Cha1'les H. Masdn, Esq., the attorney of recordofSavage &; Danforth from the beginning; asserts a lien upon the judgmeptfdr bis charges and disbursements, and opposes setting aside the execution' without satisfaction of his lien. William B; Sheldon, Esq., who was employed by Savage & Danforth to assist about a suit in their favor against the New York, Rutland & Montreal Railway Company upon the judgment in which the suit in whiCh this judgment was recovered is founded, and Stewart & Wilds, of whom Ch.arles M. Wilds, Esq., was employed, in behalf of Danforth,' to assist about the trial of the latter suit, have made similar claims, all of which have, by agreement of parties, been referred to'Hon. Lavant M. Read, who has made report. That the attorney in, a suit has such a lien for his charges and disbursements in that suit, which the court will protect against proceedings, of. the, parties in avoidance of it, seems to be well settled, especially in this state. Bac. Abr. "Attorney," F; Mont. Liel1l!l, 59, 63; Welsh v. Hole, 1 Doug. 238; Griffin v. Eyles, 1 H; Bl. 122; Machine Co. v. Boutelle, 56 Vt. 570. The report shows that :Mr. Mason's ·. services in the suit were reasonably worth $2,000, that his disbursements am.ounted to $593.14, making $2,593.14, of which he has been paid fS8.9,1,leaving $2,504.28,'of which $326.43 accrued
·FOSTER V. DANFORTH.
after the settlement between the parties, for what was warrantably done, and could not have been warrantably omitted, to protect the judgment then pending on writ of error. Under these circumstances, these latter charges appear to be as recoverable, and to attach as well to the judgment, as any of them. principle and authority, the execution should remain sufficiently in force for the collection of this balance by the attorney. Mr. Mason had before prosecuted a great number of suits for laborers against Savage & Danforth, which they settled, paying him his taxable costs, and agreeing that, "if they should recover in their suit against the railway company, his fees should be sufficient to include pay for his services in said labor suits," which the report finds to have been worth $500 j and that amount is claimed, therefore, here. But the sum of $2,000 covers all that the services in procuring this judgment were reasonably worth. Those services were not rendered in that suit, nor for Savage & Danforth in any suit, but for the laborers in suits against them. The agreement to include pay for them with the fees in the suit for Savage & Danforth is argued to have been a mere mode of fixing compensation for services in that suit. It was, however, in reality, a mode of providing compensation for services done for the laborers by adding it to that for services in the suit. The right to charge for those services depends wholly upon the collateral agreement of Savage & Danforth, which could not make what was wholly foreign. to that suit a charge upon the judgment. A lien on a judgment extends only to services and disbursements in that suit, although a lien on papers may extend to all services as an attorney, which, however, might not reach those assumed for others. Machine Co. v. Boutelle, 56 Vt. 570. Liens depend, not only upon agreement or employment, but upon possession or control. Lickbarrow v. Mason, 6 East, 27; Mont. Liens, 4. An attorney has, by virtue of his office, and of the control given him by the court, possession and control of the case of his client, which will be protected by the court, and cannot be ,displaced by the client without payment of his fees and disbursements in the case. Bac. Abr. "Attorney," E; In re Paschal, 10 Wall. 483. This possession and control do not appertain to counselor attorneys employed to advise and assist, as Mr. Sheldon and }fr. Wilds were j but only to the attorney of record bringing the suit, as recognized by the rules and practice of the court to be such, while he so continues, or to another substituted in that place. They have not the possession and control necessary for upholding a lien, as he has, but must depend upon those who employ them for their pay. The question in cases like this is not whether, or how much, they should be paid, but whether they have a lien paramount to the right of the party. Here, however, the parties have stipulated that the judgment shall include $600 for Stewart & Wilds, mak.ing $3,104.23, for which the judgment and execution are to stand. Judgment for defendant as to $3,104.23 of judgment and execution, with costs, and for the plaintiff that the balance be set aside, without costs.
FEDERA.L REPORTER1 vol.
BOWDEN et al. v. BURNHAM et at BARNES et al. v. SAME. . <9lrcu,tt Co'lll't of 1. Eighth Circuit. January 29, 1894.)
No:s. 273 and 274.
am VIEW ON E;RRI:JR-TRtAL TO
When the case is tried to the court without a jury, a generalll.nding has tbe same as .the verdict of a jury; and the facts are not reviewable by bill' ofexeeptions, or in any other manner. Federal courts may include in, one attachment and suit debts due and not due, witJiout regard to state practice in respect to sucb joinder. O'Connell v. Reed, 5 C. C. A.586,. 56 Fed. 531, followed.
FEDER.AL COURTS-STATE PIt.A,CTICE.
The rigllt .of ,amendment exists iDdependently of any state statute, and may be exercised at any stage of the cause, even after subrrtfssion, and to the verdict and judgment, and is as applJicable to attachment suits as to aD3' otbers. When a complaint is amended its ,legal effect is the sa.me as though it r\l'lld as amended; and an amendment making the jurisddctional averments establishes the ,existence of .' the jurisdiction from the commencement of the suit, and not simply from the amendment. ; ,
IN ACTION-CITIZENS:nIP OF .
SAME,..... ASSIGNED TIONAL AM'OUN,T.
. The provisio;o. Qftbe judiciary acts that an assignee of a chose in actiou cannot sue in a,federal ';O,wt, unless his assignor could bave maintained the action therein refers 'onlY'. to the citizenship of the assignor, and not to jurisdictional amount; and assignee of choses in action aggregating $2,000 may maintain the suit, If his assignors were citizens of ,other states, l.llthough they could not hare maintained separate suits, because none of tJ;1eir claims
Under the Kansas statutes, (Code, § 199,) the execution by interveners, of a redelivery bond estops them from denying that the attached property belonged' to' the defendant in attachment, or that it· was subject to the.
In Error to the Circuit Court of the United States for the District of Kansas. At Law. Action by James K. Burnham and others, doing busi;ness under the firm. name ofBurnham, ganna, Munger & Co., against A. S. Bowden.and R. A. Bowden, individually, and as partners under the name of Bowden Bros. An attachment was levied on defe;ndants' property, and thereupon Barnes, Brown & Denton intervened, claiming an in the property as mortgagees. The issues arising on the intervention were tried with the other issues rll the action, before the court, a jury having been waived, and judg. ment was for plahltifl's. and the interveners separately brought error, and the causes were heard together. Af· firmed. "',. . . . C. N. Sterry; for plaintiffs in error. W. H. Rossington, Charles Blood Smith, E. J. pallas, H. C. Soloman, and William T. Bland, ,for defendants in error.