Sherry v. Oceanic Steam Nav. Co.

U.S. Circuit Court for the District of Southern New York

Sherry v. Oceanic Steam Nav. Co.

72 F. 565, 1895 U.S. App. LEXIS 3298

CourtU.S. Circuit Court for the District of Southern New York

DecidedNovember 1, 1895

StatusPublished

Cited by6 cases

This text of 72 F. 565 (Sherry v. Oceanic Steam Nav. Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the District of Southern New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherry v. Oceanic Steam Nav. Co., 72 F. 565, 1895 U.S. App. LEXIS 3298 (circtsdny 1895).

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Opinion

LACOMBE, Circuit Judge.

Plaintiff’s attorney had no lien at common law on the cause of action. Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. 361; Swanston v. Mining Co., 13 Fed. 215. His sole reliance is on the amendment passed in 1879 to' section 66 of the Code of Civil Procedure, an act which relates to state courts, officers of justice, and civil proceedings. Section 914 of the United States Revised Statutes does not operate tó import this act in its entirety into the federal system of jurisprudence. It simply undertakes to conform the federal practice, pleadings, and forms and modes of proceeding in civil causes to the state model, only “as near as may be,” not as near as may be possible, nor as near as may be practicable. It remains still with the judges of the federal courts to construe, and in a proper case reject, any sub-ordinaté provision in such state statute as would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals. Railroad Co. v. Horst, 93 U. S. 300. Without expressing any opinion generally as to the character of such legislation as finds expression in the amendment referred to, it is sufficient to say that any such construction of it as would require this court to go on and try a cause after the defendant had adjusted the plaintiff’s claim to plaintiff’s satisfaction, and paid him the same, in ignorance, and with no notice of any agreement between plaintiff and his attorney, would unwisely incumber the administration of the law. Whatever rights the state statute may give the attorney against his client or his adversary he may prosecute in the state court, but such statute cannot operate to constrain this court to incumber its calendar with a case all controversy in which has been finally settled between the parties.

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LACOMBE, Circuit Judge.

Plaintiff’s attorney had no lien at common law on the cause of action. Randall v. Van Wagenen, 115 N. Y. 527, 22 N. E. 361; Swanston v. Mining Co., 13 Fed. 215. His sole reliance is on the amendment passed in 1879 to' section 66 of the Code of Civil Procedure, an act which relates to state courts, officers of justice, and civil proceedings. Section 914 of the United States Revised Statutes does not operate tó import this act in its entirety into the federal system of jurisprudence. It simply undertakes to conform the federal practice, pleadings, and forms and modes of proceeding in civil causes to the state model, only “as near as may be,” not as near as may be possible, nor as near as may be practicable. It remains still with the judges of the federal courts to construe, and in a proper case reject, any sub-ordinaté provision in such state statute as would unwisely incumber the administration of the law, or tend to defeat the ends of justice in their tribunals. Railroad Co. v. Horst, 93 U. S. 300. Without expressing any opinion generally as to the character of such legislation as finds expression in the amendment referred to, it is sufficient to say that any such construction of it as would require this court to go on and try a cause after the defendant had adjusted the plaintiff’s claim to plaintiff’s satisfaction, and paid him the same, in ignorance, and with no notice of any agreement between plaintiff and his attorney, would unwisely incumber the administration of the law. Whatever rights the state statute may give the attorney against his client or his adversary he may prosecute in the state court, but such statute cannot operate to constrain this court to incumber its calendar with a case all controversy in which has been finally settled between the parties.

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Bluebook (online)

72 F. 565, 1895 U.S. App. LEXIS 3298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherry-v-oceanic-steam-nav-co-circtsdny-1895.

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