amount of any judgment which should be rendered against Mead, in and by the District Court, on such appeal. Judgment having been recovered by Clark against Mead in the District Court, he (Clark) brought this suit against defendant, Sullivan, upon the undertaking.
As a counterclaim to the plaintiff's cause of action, defendant, Sullivan, interposed a judgment recovered against plaintiff, Clark, in favor of Fairbanks, Morse & Co., which judgment was assigned to Sullivan before the commencement of this action, That such judgment constitutes a valid counterclaim, as against Clark, cannot be disputed. Wells v. Henshaw, 3 Bosw. 625; Clark v. Story, 29 Barb. 295; Pom. Rem. & Rem. Rights, § 799. But the intervener, Voss, who was allowed to serve a complaint in intervention, insists that the judgment can be interposed as a counterclaim against plaintiff's cause of action on the undertaking only to the extent of plaintiff's interest in that cause of action, after deducting therefrom the amount of an alleged attorney’s lien which he (Voss) insists hc had upon the plaintiff's cause of action against Sullivan, and upon the undertaking at the time Sullivan purchased the judgment against Clark. Had the attorney such a lien? And, if so, what is the nature of that lien? These are the questions which it is important for us to determine.
The attorney's claim to a lien grows out of the following fact: Mr. Voss was attorney for Clark in the action against Mead. In that action he rendered services for Clark in both courts, worth the sum of $45. After the recovery of the judgment against Mead in the District Court, Mr. Voss entered his notice of lien to the sum of $45 in the judgment docket, opposite to the entry of the judgment. Under our statute, this gave him a lien, but what did it give him a lien upon? The language of our statute leaves no room for construction upon this point. The statute, so far as it is material to this inquiry, provides as follows: “An attorney has a lien for a general balance of compensation in and for each case upon: * * * Third. Money due his client, in the hands of the adverse party, or attorney for such party, in an action or
