Pitts v. Newlin Haines Co.

48 App. D.C. 167, 1918 U.S. App. LEXIS 2372

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 4, 1918
• Docket: No. 3152
• Status: Published

Opinion

Mr. Justice Van Orsdel

delivered the opinion of the Court:

The single question before us is stated in the first assignment of error as follows: “The court erred in ordering that the defendant Harlow return forthwith to plaintiff, the books, papers, and personal property prayed for in the bill.” The allegations of the answer to the rule were not denied. Hence, for the purposes of this case, the answer must be accepted as true. An attorney’s retaining lien broadly attaches to papers, books, documents, securities, and moneys, or other persona] property, which come into the possession of the attorney in the course of his professional employment. It differs from a charging lien against a fund derived by his aid, in that it attaches to property actually in his possession.

In the st-ate of this record, Harlow’s right to a lien cannot he questioned. What the further development of the case may disclose is mere conjecture, and cannot he indulged in favor of or against either party. If plaintiff had elected to stand upon the hill and answer to the rule, the judgment would, of necessity, have been in Harlow’s favor; and that is, in effect, the situation here presented. Before an order for the delivery of the property retained can he made, it is the duty of the court to determine the question of the existence of the lien; and, if one is found to exist, decree delivery of the property upon payment of the amount of the lien. McPherson v. Cox, 96 U. S. 404, 24 L. ed. 746.

The judgment is reversed, with costs, and the cause is remanded for further proceedings. Reversad and remanded.