Conford, Freund and Haneman. The opinion of the court was delivered by Haneman, J.A.D.
Michael J. Dwyer appeals from a denial by the Superior Court of his application to impress an attorney's lien under N.J.S. 2 A:13-5 upon a judgment recovered by Frank H. Smith and his wife Ann Smith.
The matter comes before this court upon a statement of proceedings under R.R. 1:6-3, which discloses:
On or about March 14, 1957 Frank H. Smith engaged Dwyer to represent him and his wife Ann, and Philip L. Sabatie, all of whom were defendants in an action instituted by H. & H. Ranch Homes, Inc. (Ranch Homes) in the Law Division of the Superior Court. Dwyer was authorized to file an answer and counterclaim on behalf of Smith and his wife and to file an answer on behalf of Sabatie. Dwyer filed these pleadings and performed numerous other services in the protection and prosecution of his clients' rights in the matter. On October 14, 1957 Smith notified Dwyer that he, on and after October 15, 1957, would not be responsible for any fees associated with a defense on behalf of Sabatie.
All of the parties and their respective counsel appeared in court on October 23, 1957, the day upon which trial was scheduled. The case was not reached for trial that day and was re-scheduled to be tried on October 30, 1957. Thereafter the parties, plaintiff and defendants, agreed to meet at Smith's home on October 26, 1957 in order that various stipulations could be made. On October 26, 1957 Smith advised Dwyer by telephone that he would not allow the scheduled meeting to be held. Dwyer thereafter informed Smith that it would be better that he, Dwyer, be relieved
from further participation in the case. Dwyer thereupon transmitted to Smith a substitution of attorney drawn in blank and dated October 25, 1957, together with Dwyer's entire related file. No bill or statement of fees was then delivered to Smith, but Smith was informed by Dwyer that his bill would be reasonable and nominal. Some time thereafter Smith retained Towe & Gilady, Esqs. as his counsel.
On October 28, 1957 Dwyer mailed a bill to Smith for legal services in the sum of $475. There ensued some correspondence concerning Dwyer's bill. On December 13, 1957 Dwyer advised Daniel Gilady, Esq., by letter, that he had an attorney's lien in the amount of $475 on any judgment which might be obtained in the action. The trial lasted 16 days and resulted in a judgment for Smith and his wife on their counterclaim in the sum of $1,725.61. Some correspondence transpired between Dwyer and Gilady concerning the manner and method of determining whether Dwyer was entitled to an attorney's lien. Gilady suggested that Dwyer file a petition in the main cause. Thereafter Dwyer served both Gilady, as attorney for the Smiths, and the attorney for Ranch Homes, with a notice of his intention to move before the trial court "for an order awarding counsel fees and disbursements." The trial judge heard the matter in a summary fashion and on September 27, 1958 filed an order dismissing Dwyer's motion on the ground that the court was "without jurisdiction to enter an order enforcing any statutory lien under R.R. 2 A:13-5."
The issues before this court are (1) whether Dwyer has an attorney's lien by virtue of N.J.S. 2 A:13-5, and (2) the method and mechanics of impressing such a lien upon Smith's judgment.
Smith argues that "in the light of the fact that Dwyer consented to a substitution of counsel and surrendered Smith's papers and documents prior to trial and final judgment, that he lost the lien for services above provided."
Under the common law there existed two basic types of liens for the benefit of attorneys, (1) a retaining lien, and (2) a charging lien. The former consisted of
a right in the attorney to retain in his possession all papers and items of value belonging to his client which came into his possession, until he was paid. An attorney lost this lien upon delivery of those items. Delaney v. Husband , 64 N.J.L. 275 (E. & A. 1900); Norrell v. Chasan , 125 N.J. Eq. 230 (E. & A. 1939); Visconti v. M.E.M. Machinery Corp. , 7 N.J. Super. 271 (App. Div. 1950), certification ...