Plaintiff has assigned numerous errors in his petition in error *Page 58 in this case, but, under the view taken by this court, it will only be necessary to discuss the first of these assignments, which reads, "The judgment was contrary to the law."
In the case out of which this proceeding arose, the defendant here represented the defendant in the original action, Joe McCormick. McCormick was in possession of the land in controversy, claiming title thereto. Robert Holloway brought the original action against Joe McCormick to cancel the deed under which McCormick held upon the ground of fraud and failure of consideration, and the defendant in this proceeding, as attorney for McCormick, filed an answer which was purely defensive in its nature and contained no counter claim or cross-petition, and asked no affirmative relief in behalf of Joe McCormick. Under these circumstances, it is the general rule, supported by numerous authorities, that an attorney has no lien against the property involved in the action.
Section 4100, Comp. Stats. 1921 (Rev. Laws 1910, sec. 247), provides:
"From the commencement of an action, or from the filing of an answer containing a counter claim, the attorney who represented the party in whose behalf such pleading is filed shall, to the extent hereinafter specified, have a lien upon his client's cause of action or counterclaim, and same shall attach to any verdict, report, decision, finding, or judgment in his client's favor and the proceeds thereof, wherever found, shall be subject to such lien, and no settlement between the parties without the approval of the attorney shall affect or destroy such lien provided such attorney serves notice upon the defendant or defendants, or proposed defendant or defendants, in which he shall set forth the nature of the lien he claims and the extent thereof; but said lien shall take effect from and after the service of such notice, but such notice shall not be necessary provided such attorney has filed such pleading in a court of record and endorsed thereon his name, together with the words, 'lien claimed.' "
This court has passed upon this provision of our statute in the case of Elliott et al., v. Orton et al., 69 Okla. _____,171 P. 1110, The third paragraph of the syllabus in that case reads:
"In section 247, Rev. Laws 1910, the attorney has a lien upon his client's affirmative cause of action only, and this statutory lien cannot be extended to services which merely protect an existing right or title of his client's property. He cannot impress such property with such statutory lien."
This rule announced in the syllabus is borne out by the discussion of this statute in the body of the opinion, and is in full harmony with the general rule, and with the decisions of other states based upon similar statutory provisions. For the reasons stated, defendant had no enforceable lien against the property involved in this action.
It appears from the record that during the year 1919, plaintiff purchased the interest of Joe McCormick to the lands involved in this action, and it was presumably upon the theory that this purchase constituted a settlement of compromise of the action without the consent of defendant, that the trial court rendered the judgment in this proceeding against the plaintiff under sections 4102 and 4103, Comp. Stats. 1921. The judgment, however, is erroneous upon this theory for two reasons:
First. Because in order to render an adverse party in litigation liable to an attorney for his fee because of a settlement and compromise made with such attorney's client, such attorney must have been entitled to a lien under section 4100, supra.
Second. The court having sustained Joe McCormick's motion for new trial, there was no judgment against McCormick in the original action at the time the judgment in this proceeding was rendered in favor of this defendant, and it is provided by section 4103 that in the event such settlement or compromise is made before verdict or judgment in the principal action, the attorney shall only be entitled to 33 1-3 per cent. of the amount sued on.
For the reasons above stated, the judgment of the district court of Okfuskee county should be reversed, with directions to dismiss the plea of intervention filed by the defendant herein.
By the Court: It is so ordered.