Opinion
7 Div. 944.
April 10, 1919.
Appeal from Circuit Court, Etowah County; J. E. Blackwood, Judge.
Bondurant Smith, of Birmingham, and Motley Motley, of Gadsden, for appellant.
Hood Murphree, of Gadsden, for appellee.
The brief of counsel for appellant states that —
"The only error assigned is the judgment overruling appellant's demurrers to the seventh plea to the petition of intervention."
An examination of the record fails to show that counsel for plaintiff filed any motion or petition showing and asserting their right to proceed with the suit, notwithstanding the settlement agreed upon and executed by the parties.
As we have heretofore held, upon a full consideration of the subject, such an intervention was necessary in order to render the accord and satisfaction unavailing as a bar to the further prosecution of the suit by counsel for the enforcement of their lien on the suit by the collection in judgment of their fee. Western Ry. of Ala. v. Foshee, 183 Ala. 182, 193, 62 So. 500, 504; Denson v. A. F. I. Co., 198 Ala. 383, 73 So. 525.
In the Foshee Case it was said:
"The lien is a fact which must be brought within the court's cognizance by an averment of fact. The court cannot assume the existence of a lien on demurrer to defendant's plea of accord and satisfaction. We think, therefore, that the several pleas were proof against those grounds of demurrer which asserted that plaintiff's attorney may have had an unsatisfied lien, and, we may add, a replication of the attorney's lien would be no answer to the defendant's plea of accord and satisfaction. As against the plaintiff, the plea is good, though the attorney be not provided for. If the rights of the attorney have been invaded, he must make the fact known * * * in a separate, though subsidiary and dependent, proceeding."
As to the plaintiff proper, the plea was good and the replications bad, and the rulings on demurrer were correct; and counsel, not having intervened, cannot complain on their own account.
Moreover, the record shows that the nonsuit resulted from rulings on demurrers to the replications, and not from the ruling on demurrer to plea 7. A reversal of the judgment could not therefore be predicated on any ruling as to the plea. Engle v. Patterson, 167 Ala. 117, 120, 52 So. 397.
It results that the judgment must be affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.