I concur in the conclusion announced in the foregoing opinion, but find myself out of harmony with the pronouncement that the lien of an attorney operates as an equitable assignment of the judgment. It seems to me that this conclusion is not in harmony with either the statute or numerous prior decisions of the court.
The right of Myerly to intervene may be conceded, but, as notice of his attorney's lien was not made of record on the judgment docket until after the conveyance complained of was had, he has no independent cause of action. Recovery, if any, must be upon the merits of the plaintiff's cause of action. The intervention is, for the reason stated, wholly without prejudice to the appellants. The lien of an attorney under the provisions of section 10924 is upon money due his clients in the hands of the adverse party or the attorney therefor. Subdivision 4 of the section does not change the nature of the lien. It provides a method of giving notice to the adverse party or the attorney therefor of the lien upon the money due in the hands of either the adverse party or the attorney therefor. The statute does not give a lien upon the judgment. Winslow v. Central Iowa Railway Co., 71 Iowa 197, 32 N.W. 330; Ward Lamb v. Sherbondy, 96 Iowa 477, 65 N.W. 413; Tiffany v. Stewart, 60 Iowa 207, 14 N.W. 241; Gibson v. C., M. St. P. Ry. Co., 122 Iowa 565, 98 N.W. 474; Hurst v. Sheets Trussell, 21 Iowa 501; McIntosh v. McIntosh,211 Iowa 750, 234 N.W. 234; Hemingway v. Adrian State Bank,206 Iowa 1308, 221 N.W. 920.
The lien of an attorney, under a contract for services, is not tantamount to a right to a share of the recovery stipulated for in the contract. Kauffman v. Phillips, 154 Iowa 543, 134 N.W. 575. An attorney's lien is in no sense equitable but purely statutory. Hemingway v. Adrian State Bank, supra. Such lien is subject to the right to set off mutual judgments and prior conveyances. McIntosh v. McIntosh, supra; DeLaval Separator Co. v. Sharpless, 134 Iowa 28, 111 N.W. 438. A cause of action is merged in the judgment *Page 644 subsequently entered, but, so long as the debt remains unpaid, the attorney for the judgment creditor may preserve a lien upon the sum due whether in the hands of the judgment debtor or his attorney. The rule stated in the opinion which prevails in many jurisdictions may be the better rule, but, it seems to the writer, that such rule is in necessary conflict with the pronouncements in the cited cases. The lien arises purely by virtue of the statute, which will be strictly construed and must be strictly pursued. An examination of the statute in numerous of the jurisdictions referred to will disclose that they differ widely in language from the statute of this state. For example, the statute of Montana declares that the lien shall attach to the verdict of the jury and to the judgment. In the opinion of the writer, the right of Myerly to intervene should proceed upon the theory above stated and not upon the theory of an equitable assignment. Having no lien upon the judgment, and only a lien upon the sum due in the hands of the adverse party or his attorney, it is difficult to see how the doctrine of equitable assignment can have a place. The statutory provisions are ample to protect the attorney. The interposition of the doctrine of equitable assignment adds nothing to the beneficial character of the statute, and will, in the judgment of the writer, create confusion and uncertainty in the stability of established rules, not only as to attorney's, but other, liens.
MITCHELL, J., concurs.