Marshall v. Casteel

8 N.W.2d 690, 143 Neb. 68, 1943 Neb. LEXIS 53

• Court: Nebraska Supreme Court
• Decided: March 26, 1943
• Docket: No. 31501
• Status: Published

Opinions

Simmons, C. J.

In this action plaintiff sues several defendants seeking to quiet his title to lands against clouds of record. This appeal relates only to the defendant Lee Card, who claims an attorney’s lien, and resists plaintiff’s right have a decree until plaintiff does equity and pays or offers to pay the amount of defendant’s claim. The trial court entered a decree for plaintiff. Defendant appeals. We affirm the judgment of the trial court.

This case arises as a result of the following factual situation.

March 17, 1920, James W. Good and wife executed a note for $3,000 payable to C. Harris Reed, secured by real estate mortgage upon the land involved in this action. This mortgage was assigned by Reed on September 3, 1920, to the Chadron State Bank as security for a loan. The Reed loan was not paid to the bank and the Good note and mortgage were in default. With the consent of the bank Reed brought a foreclosure action on the Good mortgage, the petition being filed June 16, 1923, the defendant representing Reed as his attorney. The case took its way through the courts, including an appeal to this court, Reed v. Good, 114 Neb. 777, 209 N. W. 619. An amended petition was filed April 29, 1927. Reed died and his administratrix was substituted as a party plaintiff. The matter went to decree on November 7, 1927.

Under date of October 28, 1927, defendant prepared a “Claim of Attorney’s Lien” reciting that as attorney for the plaintiff he claimed a lien “against the decree entered herein and the title affected by the proceedings in this cause” for professional services in the sum of $700. This he filed in court on January 4, 1928.

January 23, 1928, the Chadron State Bank intervened, set up that it was the owner of the note and mortgage and the court entered an order that the bank was the beneficial plaintiff, and that the action was to proceed for its use and benefit. In the same decree a sale previously made was set aside and new sale ordered. Subsequently sale was had to the bank and confirmed on March 5, 1928. Defendant continued to act as attorney for the plaintiff and delivered the sheriff’s deed to the bank. On January 30, 1929, the bank paid defendant $100. Defendant in his answer alleges that on or about April 18, 1928, a hearing was held in the district court, on citation of the bank seeking to have his claimed lien declared null and void, and that the court denied the request of the bank. Defendant testified to this hearing and that the court “arose from his chair * * * and Went out and denied them the relief they asked for.” No record is shown of this proceeding, no order was made and it cannot be determined what issues were presented nor what action taken. The judge who heard this matter is the same judge who has heard this matter throughout. The bank failed, and on July 26, 1933, the' court confirmed a sale to one G. Kennedy who on February 20, 1941, conveyed the land to the plaintiff. It was stipulated that the plaintiff and his predecessors in title had had possession and legal title of said lands since February 14, 1930.

Defendant tw .answer alleged this general history and prayed that the petition be dismissed as inequitable and unconscionable and that he recover costs.

On October 7, 1941, the trial court quieted title in plaintiff against the claimed lien of the defendant.

Section 7-108, Comp. St. 1929, provides: “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.”

Construing this statute this court has said: “Except as provided by statute, an attorney has no lien for services performed by him.” Card v. George, 140 Neb. 426, 299 N. W. 487.

Defendant’s position is that at the time he filed the lien the title to the land was in the adverse party, Good; that the land was used to pay the decree; that it was, therefore, “'money in the hands of the adverse party” and subject to an attorney’s lien; that the title passed to the bank and its successors in title subject to that lien; that the statute of limitations does not destroy the lien but denies only a remedy; and that equity will follow the land and require the plaintiff to do equity as a condition of relief. Defendant seeks a modification of the trial court’s decree so as to require payment of the lien as a condition to equitable relief.

The trial court based its decision on the ground, among others, that the statutes do not provide for an attorney’s lien against real estate.

The inception of defendant’s lien rights, if any, must be determined as of the date he filed his claim of lien. At that time the land here involved was real estate (notmoney), the title to which was in the “adverse party,” Good, subject to the foreclosure decree. This the defendant recognized when he filed his claim of lien against the decree and the “title affected by the proceedings.” That land never became money in the hands of the adverse party. The legislature, clearly, did not intend that an attorney should have an attorney’s lien under such circumstances. Had they so intended it would have been a simple matter to have so stated the law. The court does not have the power to extend the act by construction beyond its plain terms, so as to give a right to a lien where under the statute no lien right is granted. The plaintiff was entitled to a decree removing the cloud of the claimed lien.

The following opinion on motion for rehearing was filed November 26, 1943.

The judgment of the district court is affirmed.

Affirmed.

Heard before Simmons, C. J., Paine, Carter, Messmore, Chappell and Wenke, JJ.