ON MOTION FOR REHEARING. The appellant on motion for a rehearing complains that we have overlooked a number of authorities which hold that, where an attorney having a retaining lien on a document in his possession belonging to his client is sued by his client for the possession of the document or is brought into court in any proceeding to compel delivery of the document to his client, the court will refuse to grant a judgment for possession or delivery except upon condition that the client pay what is due the attorney as attorney fees. We did not overlook *Page 411 these authorities. They were simply regarded as not in point. The retaining lien on a document is purely a possessory right; it confers no lien on the fund or cause of action represented or created by the document. The suit here is in no sense an action or proceeding for the possession of the policy or to compel the delivery thereof to respondent. The right to the possession of the policy is not involved in the case and is in no way affected by the judgment of the court below. It is true the appellant was brought into court willy nilly. So, too, was the respondent. But they were not brought in to litigate their respective rights to the possession of the policy but to litigate their rights to the fund deposited in court. Respondent's pleading did not ask for possession of the policy, nor for an order of delivery, nor was any order or judgment given requiring the delivery of the policy either into court or to the respondent. We cannot yield assent to the proposition insisted upon by the appellant that his retaining lien, if he has one, on the respondent's policy may be converted into a lien on the fund or cause of action represented or created by the policy, by the action of the underwriter in bringing an interpleader proceeding and depositing the fund in court. If his lien does not enable him in such case to reach the fund it is only because of the frailty of his lien, and of this he cannot complain.
Appellant also cites and relies on cases in other jurisdictions wherein the common law charging lien was invoked and enforced. These cases have no application in this jurisdiction where the common law charging lien is not recognized.
The Commissioner recommends that the appellant's motion for rehearing be overruled.