Noftzger v. Moffett

Supreme Court of Kansas

Noftzger v. Moffett

65 P. 670, 63 Kan. 354, 1901 Kan. LEXIS 150

CourtSupreme Court of Kansas

DecidedJuly 6, 1901

DocketNo. 12,210

StatusPublished

Cited by21 cases

This text of 65 P. 670 (Noftzger v. Moffett) is published on Counsel Stack Legal Research, covering Supreme Court of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Noftzger v. Moffett, 65 P. 670, 63 Kan. 354, 1901 Kan. LEXIS 150 (kan 1901).

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Opinion

The opinion of the court was delivered by

Johnston, J. :

Was the plaintiff entitled to an attorney’s lien on the funds in the hands of the defendants? or, Did the defendants render themselves liable to the plaintiff for the attorney’s fees by ignoring notice of the lien and by the payment of the entire amount in their hands to another? According to the facts stated, the fee was earned in the case in which notice of the lien was given, and the money in controversy, which was in the hands of Moffett Brothers, was money due to Mrs. Boydston, a client of the attorney, as determined in the proceedings in which the attorney was employed. The statute provides :

“An attorney has a lien for a general balance of compensation . . . upon money due 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.” (Gen. Stat. 1901, §395.)

Mrs. Boydston intervened in an attachment proceeding, and it was in that case that her right to the [358]*358attached property was determined. The property was sold and converted into money by virtue of an order made by the court in that case, and the judgment of the court was that the property or its value should be forthwith returned to her. When the j udgment was returned, Moffett Brothers had in their possession about $800, received from the sale of the property under the order of the court. It was the proceeds of the property in controversy, property which had been converted into money, and was held by the defendant subject to such order as the court might make. The money belonged to plaintiff’s client. It was in the hands of -parties who were adverse to her in the action. It was the fruits of the labor and skill of plaintiff, and, under the statute quoted, it was chargeable with the lien for his fee.

The notice of the lien was sufficient to bind Moffett Brothers. It was in writing, and was served upon the attorney of record in the case. The attorney of record was the representative of the defendants, and acted for them in this matter as much as in any other involved in the action, and service upon him effectively bound them. (K. P. Rly. Co. v. Thacher, 17 Kan. 92.)

It is next contended that, as the exact amount due was not stipulated nor shown, no recovery whatever can be had. To recover the full amount claimed, the plaintiff should have shown his services were worth that sum. The showing made, however, entitled the plaintiff to a recovery of a substantial amount. By ■the stipulation he estimated the value of the services ■to be $105, and that was the amount claimed in the Hen and named in the notice -of Hen. The facts agreed upon show the character of the litigation, the nature and extent of the services rendered, and, also, that the plaintiff was successful in both courts in [359]*359which the case was pending. The character and the importance of the litigation, the labor and time necessarily involved therein and the result of the same are elements to be considered by the court in determining the value of the services rendered by the attorney. All of these things being shown or conceded, the court, with its knowledge of the value of legal services, had a basis for determination. The opinion of experts as to such values, if given, would not have been conclusive upon the court, as it must in the end apply its own general knowledge, and from all the circumstances and testimony decide what the value of legal services is. (Bentley v. Brown, 37 Kan. 14, 14 Pac. 434.) It is said that no expert proof was offered because there was no dispute as to the value of the services, and judging by the amount asked by the plaintiff, and from the character and extent of the services rendered, this may very well have been true. Enough appeared, however, to show that the plaintiff was entitled to a substantial recovery for the services shown to have been rendered, and the court erred in holding that he was not entitled to recover anything.

The judgment will therefore be reversed, and the cause remanded for a new trial.

Doster, C. J, Greene, Pollock, JJ., concurring.

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The opinion of the court was delivered by

Johnston, J. :

Was the plaintiff entitled to an attorney’s lien on the funds in the hands of the defendants? or, Did the defendants render themselves liable to the plaintiff for the attorney’s fees by ignoring notice of the lien and by the payment of the entire amount in their hands to another? According to the facts stated, the fee was earned in the case in which notice of the lien was given, and the money in controversy, which was in the hands of Moffett Brothers, was money due to Mrs. Boydston, a client of the attorney, as determined in the proceedings in which the attorney was employed. The statute provides :

“An attorney has a lien for a general balance of compensation . . . upon money due 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.” (Gen. Stat. 1901, §395.)

Mrs. Boydston intervened in an attachment proceeding, and it was in that case that her right to the [358]*358attached property was determined. The property was sold and converted into money by virtue of an order made by the court in that case, and the judgment of the court was that the property or its value should be forthwith returned to her. When the j udgment was returned, Moffett Brothers had in their possession about $800, received from the sale of the property under the order of the court. It was the proceeds of the property in controversy, property which had been converted into money, and was held by the defendant subject to such order as the court might make. The money belonged to plaintiff’s client. It was in the hands of -parties who were adverse to her in the action. It was the fruits of the labor and skill of plaintiff, and, under the statute quoted, it was chargeable with the lien for his fee.

The notice of the lien was sufficient to bind Moffett Brothers. It was in writing, and was served upon the attorney of record in the case. The attorney of record was the representative of the defendants, and acted for them in this matter as much as in any other involved in the action, and service upon him effectively bound them. (K. P. Rly. Co. v. Thacher, 17 Kan. 92.)

It is next contended that, as the exact amount due was not stipulated nor shown, no recovery whatever can be had. To recover the full amount claimed, the plaintiff should have shown his services were worth that sum. The showing made, however, entitled the plaintiff to a recovery of a substantial amount. By ■the stipulation he estimated the value of the services ■to be $105, and that was the amount claimed in the Hen and named in the notice -of Hen. The facts agreed upon show the character of the litigation, the nature and extent of the services rendered, and, also, that the plaintiff was successful in both courts in [359]*359which the case was pending. The character and the importance of the litigation, the labor and time necessarily involved therein and the result of the same are elements to be considered by the court in determining the value of the services rendered by the attorney. All of these things being shown or conceded, the court, with its knowledge of the value of legal services, had a basis for determination. The opinion of experts as to such values, if given, would not have been conclusive upon the court, as it must in the end apply its own general knowledge, and from all the circumstances and testimony decide what the value of legal services is. (Bentley v. Brown, 37 Kan. 14, 14 Pac. 434.) It is said that no expert proof was offered because there was no dispute as to the value of the services, and judging by the amount asked by the plaintiff, and from the character and extent of the services rendered, this may very well have been true. Enough appeared, however, to show that the plaintiff was entitled to a substantial recovery for the services shown to have been rendered, and the court erred in holding that he was not entitled to recover anything.

The judgment will therefore be reversed, and the cause remanded for a new trial.

Doster, C. J, Greene, Pollock, JJ., concurring.

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65 P. 670, 63 Kan. 354, 1901 Kan. LEXIS 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/noftzger-v-moffett-kan-1901.

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