Dwyer v. Ells

Massachusetts Supreme Judicial Court

Dwyer v. Ells

94 N.E. 286, 208 Mass. 195, 1911 Mass. LEXIS 788

CourtMassachusetts Supreme Judicial Court

DecidedMarch 2, 1911

StatusPublished

Cited by5 cases

This text of 94 N.E. 286 (Dwyer v. Ells) is published on Counsel Stack Legal Research, covering Massachusetts Supreme Judicial Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dwyer v. Ells, 94 N.E. 286, 208 Mass. 195, 1911 Mass. LEXIS 788 (Mass. 1911).

Pincite

Opinion

Knowlton, C. J.

This is an action to recover money collected by the defendant in satisfaction of an execution upon a judgment in favor of the plaintiff. The defendant was the plaintiff’s attorney in the prosecution of the action in which the judgment was obtained. The question before us arises upon the defendant’s exception to the refusal of the judge to instruct the jury as follows: “ If the jury find as a fact that the defendant entered his appearance as an attorney at law in the case of George Dwyer v. The Boston Elevated Railway Company, and prosecuted said case, as sole counsel, to final judgment in favor of his client, the taxable costs accruing in said case are, as a matter of law, the property of the defendant, and the jury should find a verdict for the defendant, if plaintiff’s claim is for said taxable costs.” Other matters were litigated in regard to defenses set up in the answer, with which we have no concern.

F. F. Collier, for the plaintiff. W. H. Thorpe, for the defendant, submitted a brief.

The instruction requested is not founded upon the R. L. c. 165, § 48, which gives an attorney who has prosecuted a suit to final judgment a lien upon the judgment and execution for his fees and disbursements. It rests upon a different contention, namely, that the taxable costs are the property of the attorney. It does not even make a distinction between different kinds of taxable costs, such as those allowed for witness fees, or officers’ fees, which often are paid by the party and not by the attorney, and those that are on account of the services of the attorney, like the attorney’s fee allowed by the statute in the taxation of costs. It seems plain that, upon this record, it does not appear that the instruction could have been given.

The judgment for costs is a judgment in favor of the party, not of the attorney, and the money represented by the costs is the property of the party. The attorney is given a lien by the statute for his fees and disbursements, upon the entire judgment —that part of it which is for damages, as well as that which is for costs. He has no rights in the judgment except the lien created by the statute. The creation and existence of this lien are inconsistent with his ownership of the judgment, or of any part of the judgment, upon which the lien is given.

In the R. L. c. 203, § 1, it is provided that in ordinary cases “ the prevailing party shall recover his costs.” The general subject is considered in Bruce v. Anderson, 176 Mass. 161, 163.

Exceptions overruled.

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Knowlton, C. J.

This is an action to recover money collected by the defendant in satisfaction of an execution upon a judgment in favor of the plaintiff. The defendant was the plaintiff’s attorney in the prosecution of the action in which the judgment was obtained. The question before us arises upon the defendant’s exception to the refusal of the judge to instruct the jury as follows: “ If the jury find as a fact that the defendant entered his appearance as an attorney at law in the case of George Dwyer v. The Boston Elevated Railway Company, and prosecuted said case, as sole counsel, to final judgment in favor of his client, the taxable costs accruing in said case are, as a matter of law, the property of the defendant, and the jury should find a verdict for the defendant, if plaintiff’s claim is for said taxable costs.” Other matters were litigated in regard to defenses set up in the answer, with which we have no concern.

F. F. Collier, for the plaintiff. W. H. Thorpe, for the defendant, submitted a brief.

The instruction requested is not founded upon the R. L. c. 165, § 48, which gives an attorney who has prosecuted a suit to final judgment a lien upon the judgment and execution for his fees and disbursements. It rests upon a different contention, namely, that the taxable costs are the property of the attorney. It does not even make a distinction between different kinds of taxable costs, such as those allowed for witness fees, or officers’ fees, which often are paid by the party and not by the attorney, and those that are on account of the services of the attorney, like the attorney’s fee allowed by the statute in the taxation of costs. It seems plain that, upon this record, it does not appear that the instruction could have been given.

The judgment for costs is a judgment in favor of the party, not of the attorney, and the money represented by the costs is the property of the party. The attorney is given a lien by the statute for his fees and disbursements, upon the entire judgment —that part of it which is for damages, as well as that which is for costs. He has no rights in the judgment except the lien created by the statute. The creation and existence of this lien are inconsistent with his ownership of the judgment, or of any part of the judgment, upon which the lien is given.

In the R. L. c. 203, § 1, it is provided that in ordinary cases “ the prevailing party shall recover his costs.” The general subject is considered in Bruce v. Anderson, 176 Mass. 161, 163.

Exceptions overruled.

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Bluebook (online)

94 N.E. 286, 208 Mass. 195, 1911 Mass. LEXIS 788, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dwyer-v-ells-mass-1911.

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