Cowen v. Boone

48 Iowa 350

• Court: Supreme Court of Iowa
• Decided: April 20, 1878
• Status: Published

Opinion

Seevers, J.

l. aypeai! i when it Rea I. The abstract states: “This cause came on for hearing upon the demurrer, ” and after hearing arguments of^jcounsel thereon the “eourt entered an order ailq judgment ordering and adjudging that said demurrer be overruled, to which order and judgment of the court plaintiff at that time excepted, and elected to stand thereon. ”

It is insisted by the appellees that no judgment was entered or rendered by the court, and that, therefore, this appeal, to say the least, is premature.

An appeal lies from “an intermediate order involving the merits, and materially affecting the final decision.” Code, § 3164.

The court ordered and adjudged that the demurrer be overruled, and the plaintiff elected to stand thereon; that is to say, he refused to reply. Such an entry of record, we think, gives a party the right to appeal therefrom.

II. The grounds of demurrer are — First, “that the facts alleged * * purport to constitute a cause of action, or counter-claim, in favor of said defendants, against said plaintiffs, and that the facts therein stated do not entitle defendants to the relief demanded; and second, that the facts therein alleged do not constitute a defense, either in whole or in part, to plaintiff’s cause of action.”

It is insisted, as no counter-claim is alleged, and as the matters pleaded in the answer are not set up as a defense to the foreclosure of the mortgage, that, therefore, the demurrer was properly overruled.

This may be.conceded. The demurrer, however, is both general and Special (Hanna v. Hawes, 45 Iowa, 437), and as the general ground allowed in equitable cases is substantially stated in the demurrer, it is sufficient. Code, §§ 2648, 2649, 2664.

2. attorney: lien of: waiver. III. The only necessary question is, which of these parties has the prior lien on the premises described in ,, ' , til6 mortg&gS.

The hen of an attorney is prescribed and fixed by a statute which has been in force, and now exists, without substantial change, since 1851 (Code of 1851, § 1618; Revision, § 2708; Code, § 215), and, so far as it affects this controversy, provides that an attorney has a lien on “money due his client in th& hands of the adverse party * * * from the time of giving notice in writing to such adverse party;” which notice, under the Code, may be entered “in the judgment docket opposite the entry of the judgment.” But this mode of giving notice in no manner affects the nature and extent of the lien.

Unless the prescribed notice has been given, the parties could settle and adjust the judgment or matter in controversy, without reference to the claim of the attorney for his fees. Casar v. Sargeant, 7 Iowa, 317. The “statute does not give the attorney a lien upon a judgment as a judgment.” Hurst v. Sheets and Trussell et al., 21 Iowa, 501. But he has a lien on money due his client in the hands of the adverse party from the time of giving the required notice.

As between Annetta Marble and W. H. Marble, the defendants had a lien on the money due on the judgment, and it may be conceded (a point, however, which we do not determine) that they had the right to enforce such lien in the same manner and to the same extent the plaintiff in the judgment could enforce its payment; that is to say, that the lien of the attorneys carried with it the lien of the judgment or attachment.

The title to the land which had been attached “was perfected in said Annetta Marble by these defendants.” How or in what manner this was done is not disclosed, nor do we think the manner of doing it material. Now defendants insist that their lien, as attorneys, attached to and continued to exist on the land after they had succeeded in perfecting the title thereto in their client. She being the owner of the land, sold it to the defendant Boone. The mortgage, being taken for a portion of the purchase money, was transferred by her to the plaintiff.

Certainly, when the defendants perfected the title in their client without obtaining payment for their services, W. H. Marble would not be bound to pay them. It must, we think, be true as between Boone, the plaintiff, and the defendants, that the latter should be deemed to have waived their lien. In fact the lien was on the money due from the adverse party to the client of defendants.

Now, suppose the latter had collected the money, and paid! it over without satisfying the amount of the lien, certainly, they would be deemed to have waived it, and the judgment debtor would be discharged.

Now, conceding defendant’s theory as to their lien to be true, this is precisely what they have done; for their claim is that the filing of their lien created a lien on the land in the hands of the judgment debtor, and the title to this land they “have perfected” in their client, without protecting themselves. We are of the opinion that the judgment debtor,' Boone, and the plaintiff had the right to suppose the lien of defendants to have been satisfied or waived, and that the mortgage lien is superior to the lien of defendants, who, in fact, have no lien on the land.

Reversed.