Page:North Dakota Reports (vol. 3).pdf/323

proceeding in which the attorney claiming the lien was employed, from the time of giving notice in writing to such adverse party, or attorney for such party, if the money is in the possession or under the control of such attorney, which notice shall state the amount claimed, and, in general terms, for what services. Fourth. After judgment in any court of record, such notice may be given, and the lien made effective against the judgment debtor, by entering the same in the judgment docket, opposite the entry of the judgment.” Comp. Laws, § 470, subds. 3, 4. It is plain from this language that the lien is not upon the judgment, as the principal thing. The lien is upon the money due the client, in the hands of the adverse party. That lien, before judgment, can be secured by serving notice as prescribed by subd. 3 of the section. After judgment it can be secured by making the entry therein provided for. But the lien is the same in either case. It isa lien upon the money due, and not upon the judgment itself. After judgment has been recovered, that lien can be secured only by making this entry, unless the notice required by subd. 3 has already been given. In case that notice has been given it is possible that no further notice would be necessary, so far as the judgment debtor is concerned. Whether it would suffice, as against a third person, having no actual notice, it is not proper to determine in this case. But whether notice is given under subd. 3, or an entry is made under subd. 4, of § 470, the lien is primarily upon the money due, and not primarily upon the judgment itself. Winslow v. Railroad Co., (Iowa,) 32 N. W. Rep. 330. In this case, however, the intervener is compelled to insist that he has a lien upon the judgment, and upon the undertaking signed by Sullivan, and upon the cause of action upon such undertaking. Defendant, Sullivan, is seeking to set off the judgment against plaintiff, which he has purchased, against plaintiff's claim arising out of the undertaking. It is obvious that Sullivan’s right to have this set off allowed is absolute, if the undertaking is owned by plaintiff, and no one else has any interest in it. The statute confers upon him a legal right to defeat plaintiff's cause of action by