Wipfler v. Warren

128 N.W. 178, 163 Mich. 189, 1910 Mich. LEXIS 586

• Court: Michigan Supreme Court
• Decided: November 11, 1910
• Docket: Docket No. 17
• Status: Published

Opinion

Ostrander, J.

(after stating the facts). The law creates the lien of a solicitor upon the judgment or fund resulting from his services. As a general rule, if the demand is reduced to a judgment against the client, the lien is lost, and, as a general rule, a solicitor may not complain of a substitution of solicitors if the order of substifcution preserves his lien. Jones v. Muskegon Circuit Judge, 95 Mich. 289 (54 N. W. 876). The original decree required the receiver to pay a fund, the amount of which was also established, to one of the clients of Mr. Warren. Complainant here claims to be owner of the fund. The decree determining the amount of the lien of Mr. Warren was, in effect, a modification of the original decree, was made in the same cause upon the determination of an issue of fact which was tendered by the clients of Mr. Warren, of whom the complainant here was one. It may be remarked that she proposes in her present suit to submit the identical issue to the circuit court in chancery for the county of Jackson. We have no doubt of the power of the court which, made the original decree to so direct its receiver that the lien of the solicitor should not be impaired, and find no reason or authority for denying the power to determine upon the application of the fund owners the extent of the lien.

As to the contention respecting the plea of defendants Robertson and Rastall, it is apparent, other considerations aside, that the circuit court in chancery for Jackson county cannot render complete relief. It cannot entertain a cross-complaint to foreclose the mortgage nor enter a decree which shall operate as a strict foreclosure, nor compel a discharge of the mortgage. The bill of complaint is directed to securing a release of the mortgage upon land in Wayne county, a result which, whatever the decree of the court may be, must be finally brought about by a proceeding in the county in which the land is situated. This court is not called upon to determine, but it is proper to suggest, whether the Jackson county court ought to make any order, determination, or decree respecting the fund which is in the hands and under the control of the Wayne county court; whether the receiver and his surety can be discharged of responsibility under an existing decree by obeying, not the order of the court appointing the receiver, but the order of some other court. It is a plausible argument that only the rights of certain persons as between each other are involved. But to the extent that we are called upon to determine those issues, effective and complete determination involves disposition of a fund still in the hands of a receiver of a court other than the court asked to render the required decrees.

The decree is affirmed, with costs to appellees.

Bird, C. J., and Hooker, Blair, and Stone, JJ., concurred.