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Alderman v. Nelson el al.

of the claim for services had reached them before any assignment, legal or equitable, had been executed or agreed upon.

The judgment in the circuit court was not vacated or annulled by the appeal, but remained in full force, except so far as proceedings were stayed by a writ of supersedeas. Central Union Tel. Co. v. State, ex rel., 110 Ind. 203. This was the judgment which gave Cobb a right to make his claim out of the property of Alderman, and this was the judgment upon which the lien must attach, if it attaches to any judgment at all, for the judgment of the Supreme Court simply affirmed that of the circuit court. The notice*should be taken at the time the judgment it is intended to bind is rendered, and that is the judgment of the trial court. This is so held in Day v. Bowman, 109 Ind. 383, and is, we have no doubt, the correct rule. It can not have been the intention of the framers of our statute to leave the right to take a lien open pending the time allowed for appeal, or to leave it open during the time the case is in the Supreme Court on appeal; but, on the contrary, the evident intention was to require promptneas in giving notice.

The statute gives the lien, and, to secure it, the statutory provisions must be pursued with reasonable strictness and accuracy. It may not be necessary to keep to the very letter of the statute, but it is necessary to keep within its spirit. We are constrained to hold in this instance, that the attorneys who claim the lien have not obeyed the letter or the spirit of the statute. It is there written: "That such attorney shall, at the time such judgment shall have been rendered, enter, in writing, upon the docket or record wherein the same is recorded, his intention to hold a lien thereon." E. S. 1881, section 5276. While it may be true that some latitude as to the time of filing the notice may be allowed, since it is apparent that the notice could not well be entered at the same instant the judgment is recorded, still, we think that •the period intervening between June 10th, 1882, and April Vol. 111.—17

Alderman r. Nelson el at

14th, 1884, is far longer than the statute allows. To permit such a long delay would defeat one of the chief purposes of the statute, and no reasonable construction of its words will permit the conclusion that a delay of many months will not impair the lien, unless rights have been acquired in the meantime. Our decisions, as we think, give the statute a very different construction from that which the theory of the appellees requires. Day v. Botoman, supra; Puett v. Beard, supra.

It is argued with much ability, and some plausibility, that the omission to enter the notice at the time the judgment is rendered only defeats the lien as to those who acquired rights prior to the time the notice was given; and it is said that the case falls within the rule that a conveyance not recorded within the time prescribed by law is nevertheless good as to those who acquire rights after it is recorded. The fallacy in this position is in assuming that the two classes of cases are the same in principle. They are not the same, for the conveyance is valid between the parties without recording, and the purpose of recording is to give notice, not to validate the deed; while in the case of a lien, notice is essential to the existence of the lien itself, as it is only by virtue of the statute that a lien can exist. Hill v. Brinkley, 10 Ind. 102. Notice is an indispensable element of the lien, for without notice there can be no lien.

This case is much more closely analogous to the case of a mechanic's lien than it is to the case of a mortgage. The lien of a mortgage grows out of a contract, while the lien of a mechanic, like that of an attorney, is of purely statutory creation. It would hardly be contended that a mechanic could enforce a lien against any one unless he had given the notice required by law; and the same principle that governs the case of a mechanic's lien must govern the case of an attorney's lien.

It is not necessary to inquire whether an attorney had a lien on his client's judgment at common law, for the statute The Cincinnati, Hamilton and Indianapolis Railroad Company v. Jones.

covers the entire subject and creates the lien, and that is the only one that can be enforced. It was undoubtedly within the power of the Legislature to abrogate a rule of the common law, so that, if it were conceded that the lien existed at common law, it would not avail the appellees. The statute is now the source from which the lien is derived, and it can only exist as the statute creates it.

The case is before us on the complaint, and we can not presume that there was bad faith on the part of the appellant. That, if available at all, must be pleaded as a defence.

Judgment reversed.

Filed June 16, 1887.

No. 12,377.

The Cincinnati, Hamilton And Indianapolis RailRoad Company V. Jones.

Railroad.Bridge Abutting on Highway.Fence.Stock.—While a railroad company is not required to fence its track, or to maintain cattle-pits, at points where to do so would interfere with the safety of its employees in operating trains, or where fences or cattle-pits would interfere with its rights or with the rights of the public in travelling or doing business with the company, yet the burden is upon the company to show that, in constructing and maintaining a bridge abutting upon a highway, it had adopted all reasonable and practicable precautions to keep animals from entering upon the bridge from the highway; and it does not alter the case that the bridge may have been partially in the highway, or that the animal may have been struck while upon that part of the bridge extending into the highway, on ground appropriated by the company.

Same.Securely Fenced.—Where, in the absence of a showing that it is reasonably impracticable to do otherwise, a railroad company maintains a bridge in such a condition that animals may enter upon it from a public highway, thus putting in jeopardy the safety of trains as well as the lives of the animals, the railroad is not securely fenced.

Same.Evidence.Hypothetical Question.—In an action against a railroad company for killing a mare, it is not error to permit the following quesThe Cincinnati, Hamilton and Indianapolis Railroad Company t. Jones.

tion to be answered: "Suppose ' Little Miss ' (the mare) was in as good condition, sound in wind and limb, at the time she was killed in October, 1884, if she was killed then, as she was when you knew her last, then I will ask you to state what was her fair market value;" especially so where counsel apprise the court that if they do not maintain the hypothesis upon which the question is put, the evidence shall be struck out.

Same.Race Horse.General Reputation.—In such case, evidence of the general reputation of the mare among horsemen and turfmen, with reference to her being rattle-headed or disposed to break when racing, is not admissible.

Same.Practice.Witness.—Where it does not appear from any statement in the record what a witness would have testified to in answer to an interrogatory, the sustaining of an objection presents no question on appeal.

From the Rush Circuit Court. i2. D. Marshall and W. Study, for appellant. B. L. Smith, W. J. Henley, C. Cambem and T. J. Newlcirk, for appellee.

Mitchell, J.—This was a suit to recover the value of a mare alleged to have been struck and killed by the appellant's engine and train of cars, on the 18th day of October, 1884. The complaint charged that the railroad was not securely fenced at the place where the animal went upon the track. The issue was made by a general denial. There was a trial, verdict and judgment for $3,500.

It is urged on behalf of the appellant, that the verdict is not sustained by the evidence.

The railroad company rested its defence mainly upon the proposition that it was under no legal obligation to maintain a fence at the place where the animal entered upon its track.

It appears from the evidence, that the appellant's line passes east and west through the city of Rushville. A short distance east of the east boundary of the city limits the railroad intersects a highway, known as the Michigan road, which runs north and south. At the point of intersection, and for some distance either way, the highway runs parallel with and along the west bank of a race or watercourse, over The Cincinnati, Hamilton and Indianapolis Railroad Company i: Jones.

which the railway track is laid upon a wooden bridge, some sixty feet in length. The west end of the bridge is on a level with the highway, and within the highway limits, not more than seven feet distant from the travelled track. The width of the highway at the point of intersection, counting from the west end of the bridge, is but twenty-seven feet. The railway bridge was covered with plank or cross-ties, three inches thick, and about nine inches wide, laid from two to two and a half inches apart. Guard-rails designed to afford protection to engines and cars, in case of derailment, were placed at suitable distances from the rails of the main track, and the evidence tended to show that the security of trains, in case of derailment on the bridge, rendered it necessary to place the cross-ties close together. As a means of deterring animals from going upon the bridge, two cross-ties had been omitted or taken out, one about three and the other about five feet from the west end. Whether any more effective means for that purpose could have been employed, with a due regard for the safety of trains and employees, does not seem to have been the subject of any testimony one way or the other. The railroad company relies upon what it claims to have established as the fact, that the west end of the bridge extends necessarily into the highway limits, and that the animal when struck, although upon the west end of the bridge, was, nevertheless, within the bounds of the highway. The company claims further, that a cattle-guard could not have been constructed to the westward of the bridge without encumbering the highway and rendering travel thereon dangerous. It appears that the plaintiff's mare escaped from a pasture-field, and, passing along the highway, entered upon the west end of the bridge, where she was struck by an engine about five o'clock in the morning. There was evidence from which the jury may have believed that the animal had passed over the openings in the west end of the bridge, and that she had turned westward, and was trying to escape to the highway, when struck by the engine. Other evidence

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