Our former opinion shows generally the relation of Mr. Clark R. Fletcher to this case. He was not formally a party to that appeal, but has since appealed from the judgment. We have allowed a reargument of the issues passed upon in our former opinion so as to reconsider the whole case on Mr. Fletcher's appeal. The original lien claimant and respondent, A. Enkema, having departed this life in the meantime, Mrs. Nellie Enkema, the executrix of his estate, has been substituted in his stead as lien claimant and respondent.
4. In our former opinion we declined to pass upon the question whether an attorney not of record was entitled to a lien. Our refusal was put upon the ground that the point had not been made during the trial below. If in fact it had been, counsel failed, when the case was here before, to make their printed record disclose the fact. On Mr. Fletcher's appeal it is made to appear that at the opening of the trial there was an objection by appellants to the taking of any evidence upon the ground that Mr. Enkema was not and never had been "an attorney of record in this case." The objection of course was broad enough to raise the point, but we are still of the opinion that it was not pressed below nor much thought *Page 612 of until the first appeal here. But waiving all that, we have considered and decide the question on its merits.
The cases cited for respondent, which appear in subdivision one of the former opinion, do not involve a statute so broad as ours, G. S. 1923 (1 Mason, 1927) § 5695, under which "an attorney has a lien for his compensation whether the agreement therefor be express or implied." The following enumeration of the things upon which the lien may be impressed contains nothing to indicate that attorneys of record are the only beneficiaries. On the contrary, the statute all the way through is cast in such general language as to indicate no such intention. In consequence, we hold that an attorney who has rendered services in an action, although not of record therein, is entitled to the benefit of the statute. Cunningham v. Sizer Steel Corp. (D.C.) 1 F.2d 653; and Rinaker v. American B. M. Co. 198 Ill. App. 252. See also Jackson v. Clopton, 66 Ala. 29; Smith v. Wright, 153 Mo. App. 719, 134 S.W. 683; 6 C.J. 787.
5. Our reconsideration of the case has not enabled us to conclude that the decision below of the fact issues should be disturbed, except for the minor modifications hereinafter made. The reargument has dealt mostly with such issues. The decision below determining Mr. Enkema's share of the fee has enough of evidence in its support to make it improper for us to disturb it.
Mr. Fletcher claims under a contract made with Mrs. Meacham on the procurement of Enkema, entitling him to one-third of the recovery. Thereafter, some of the evidence indicates, Mr. Fletcher was discharged by Mrs. Meacham. She had the right to discharge him, even without justification. Lawler v. Dunn,145 Minn. 281, 176 N.W. 989. That he was actually discharged is denied by appellants, who claim that he continued to render services after his alleged discharge.
It ought not to be necessary, but seems so in this case, to repeat that it is not for us to determine fact issues. The decision below goes on the theory that when Mr. Grimes came into the case he obligated himself to see that Mr. Fletcher was justly compensated. *Page 613 That result the learned trial judge sought to accomplish. His jurisdiction in the premises cannot be denied. 1 Dunnell, Minn. Dig. (2 ed. Supp.) § 666. We cannot say that the decision is manifestly and palpably against the evidence, and so should not reverse. Charest v. Bishop, 137 Minn. 102, 162 N.W. 1063.
But the reargument has shown the decision wrong in some minor aspects. Mr. Enkema was paid $300 by Mrs. Meacham herself. The amount allowed Mr. Enkema's estate should be reduced by that amount. It should go back to Mrs. Meacham because the $10,000 withheld from the $30,000 paid in settlement of the case was to cover all attorneys' fees chargeable to her. The Enkema claim should be further reduced by $75 and that amount credited to Mr. Fletcher. The latter advanced that amount to Enkema for expenses, but it does not appear that he used it for that purpose. Mr. Fletcher should also be credited with $61.73, which is the total of miscellaneous items of expense paid out by him, and that amount charged to Mr. Grimes and Mr. McDowell.
With these modifications, the judgment is affirmed.