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Artale v. Columbia Ins. Co.

Court of Errors and Appeals of New Jersey

May 23, 1932, Argued ; October 17, 1932, Decided

No Number in Original


 [*464]  [**585]   The opinion of the court was delivered by

PARKER, J. The fundamental question to be decided in whether the Supreme Court erred in dismissing the petition. The opinion of that court, reported in 108 N.J.L. 240; 157 Atl. Rep. 157, holds that the application in the petition must be denied, and puts the denial on two grounds -- first, that it calls for a determination of the alleged lien and its amount in a summary way, contrary to the ruling in Levy v. Public Service Railway Co., 91 N.J.L. 183; and secondly, that the plaintiffs Artale were necessary parties to the proceeding and had not been joined therein. The rule entered upon this opinion adjudged not only that the prayer of the petition be denied, but that the [***2]  petition be dismissed with costs.  There was an application for reargument which was denied, and the appeal embraces that denial also, but this phase of the case we find it unnecessary to consider for reasons which will appear presently. The notice and grounds of appeal cover several other rulings, but at the argument counsel abandoned them and the appeal was limited to the dismissal of the petition and the refusal of a reargument.

 [*465]  The proceeding is based on the statute of 1914 (Pamph. L., p. 410), which is quoted in full in the Levy case, ubi supra. It may be well to say that the circumstances of this case as set out in the petition exhibit a situation to which the act of 1914 is applicable. Consequently we are concerned only with the sufficiency of  [**586]  the procedure, and not with questions of proof at a hearing.

As to the summary character of the proceeding -- it is true that in the Levy case we said that ] apart from constitutional questions relating to trial by jury, which we did not consider, the statute itself made no provision for a summary determination of the lien, and that such a provision would not be read into it. The Levy case came up from [***3]  a court of law, and perhaps the opinion should be read in the light of that fact; for the act of 1914 is applicable to courts of equity as well, and expressly provides that "the court in which such (main) action * * * is pending, upon the petition of the attorney, solicitor or counselor-at-law, may determine and enforce the lien." This language was treated as mandatory by the Supreme Court in Simon v. Globe Indemnity Co., 9 N.J. Mis. R. 392; 154 Atl. Rep. 238. Assuming the correctness of that view, then it follows that the statutory lien of a solicitor in a Chancery suit must be ascertained and enforced in Chancery; and presumably according to the usual practice of that court, without a jury, as in Cicalese v. Fortunato, 92 N.J. Eq. 329. Recent cases in which Chancery has undertaken to settle the amount of a lawyer's charges without a jury, apart from the statute now under consideration, are Raimondi v. Bianchi, 100 N.J. Eq. 448; 102 N.J. Eq. 254; Sinisi v. Milton, 107 N.J. Eq. 179, and Grimm v. Franklin, 102 N.J. Eq. 198; affirmed, 146 Atl. Rep. 914. However, our present concern is with an action at law, and a claim of attorney's [***4]  lien therein; so that the Levy case is altogether in point. But, accepting the requirement of trial by jury, we are unable to construe the petition as calling for an ascertainment of the lien without a jury. Paragraph 18 of the petition expressly cites the Levy case; and in it the petitioner "respectfully petitions this court" (i.e., the Supreme Court, in  [*466]  which the action was brought) "to determine and enforce his lien for services, which resulted in the prosecution, obtaining and entering of the judgment in favor of the plaintiff's," &c. This follows the language of the statute as quoted above; and that is enough as a matter of pleading. We find nothing in the petition to negative a jury trial; and in any event the court could readily control that feature without dismissing the petition.

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109 N.J.L. 463 *; 162 A. 585 **; 1932 N.J. LEXIS 398 ***


Prior History:  [***1]  On appeal of Joseph T. Lieblich from rule entered in the Supreme Court dismissing his petition for ascertainment of attorney's lien on the judgment recovered by the plaintiffs, and from a further rule denying application for reargument. The opinion of the Supreme Court is reported in 108 N.J.L. 240.


parties, dismiss a petition, notice

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