Gibson v. Buckner

44 S.W. 1034, 65 Ark. 84, 1898 Ark. LEXIS 31

• Court: Supreme Court of Arkansas
• Decided: February 26, 1898
• Status: Published

Opinion

Wood, J.,

(after stating the facts.) An allotment of land ,in a suit for partition is not a recovery thereof, in the sense of section 4225 of Sand. & H. Dig., so as to entitle an attorney to a lien upon same for his fee. In speaking of this section, this court, in Hershy v. Duval, 47 Ark. 86, said: “It is limited to eases where there has been an actual recovery, and cannot be extended to professional services which merely protect an existing right or title to property.” Greer v. Ferguson, 56 Ark. 324.

It is stated, however, in brief of counsel for appellee, that in the proceedings for partition judgment was given in favor of appellant and one Alice Hill against certain other parties for the sum of $233.34, and that said judgment, by agreement with the parties to said suit, was paid off or satisfied in land, whereby appellant was allotted, in satisfaction of her one-half interest in said judgment, land to the value of $116.67; and appellee has brought here by certiorari a copy of the decree and proceedings in the suit in partition which shows the above to be the facts. Counsel therefore contends that the chancellor who rendered the decree in this suit took judicial notice of the decree in the partition suit which he also rendered, and that his decree in the suit at bar declaring a lien on the lands was correct, inasmuch as the personal money judgment in favor of appellant in the partition suit was paid off in land, and he cites, to sustain his contention, Porter v. Hanson, 36 Ark. 591. Conceding that counsel for appellee is correct in this, the lien in that event could only be declared for the sum of $116.67, and only upon the specific lands which were set apart in satisfaction of that amount. But the question is not properly before us. It is not presented by the pleadings, and we do not determine it. There is nothing to show that the decree and proceedings in the suit for partition were in evidence in the suit at bar. A court cannot take judicial notice of its own records concerning matters of the kind under consideration in a different case from that being tried. Lake Merced Water Co. v. Cowles, 31 Cal. 215; Baker v. Mygatt, 14 Iowa, 131; National Bank v. Bryant, 13 Bush (Ky.), 419; Banks v. Barnam, 61 Mo. 76.

It is only in the same case that prior proceedings in the same court will be judicially noticed. State v. Bowen, 16 Kas. 475.

The decree declaring a lien on the lands mentioned in the complaint for the sum of $125 is therefore reversed, and dismissed, as to the lien, without prejudice.