ment, and had one been properly presented, it must have been overruled.

The subsequent attempted appeal by plaintiffs themselves from a judgment that was void, and in a cause that was out of court, amounted to nothing. It could in no way affect the foregoing conclusion.

The judgment of the county court is affirmed.

JUDGMENT PREMATURELY ENTERED, as where summons has been served, but the time allowed by law to plead has not expired, is irregular merely, and not void: Mitchell v. Aten, 1 Am. St. Rep. 231.

HOOPES v. COLLINGWOOD.

[10 COLORADO, 107.]

WHERE THE INDORSEE OF A NOTE fills the blanks contained therein so as to

change the rate of interest from the legal rate to an excessive rate, without the knowledge or consent of the maker, the note is vitiated and becomes void.

Bereman and Jones, for the appellant.

Bullick and Dickson, for the appellees.

STALLCUP, C. This is an action upon a promissory note by the plaintiff (appellant) against the defendants (appellees). The complaint states that plaintiff was assignee of the insolvent corporation, the Bank of Breckenridge, to pay its debts with its property; that defendants, upon the seventeenth day of February, 1881, made and delivered for value to one W. W. Goodrich their promissory note at eleven days for $744.12; that Goodrich, for value, before maturity, sold and transferred this note to the Bank of Breckenridge, which bank afterwards transferred and assigned to plaintiff for purpose aforesaid; that the note is due and unpaid; prays judgment for the amount and costs. The answer, all the defendants answering jointly, states that they made to Goodrich their certain promissory note bearing date of February 17, 1881, whereby they promised to pay him eleven days thereafter said sum of $744.12, but deny it was for value, and allege it was for accommodation, and deny receipt of any consideration; and further say they made the note in writing in these words and figures:

"744.12.

BRECKENRIDGE, COL., February 17, 1881. "Eleven days after date, we promise to pay to the order of W. W. Goodrich seven hundred and forty-four and 12-100 dollars, with interest at

until paid.

per cent per

from

"E. J. COLLINGWOOD.

"GEO. H. Bressler.

"R. B. STAPP.

"W. J. SWIFT."

That this note was delivered to said Goodrich in those words and figures; that said Goodrich indorsed said note over to the bank, but they have no knowledge, etc., as to whether or not the bank purchased said note or paid value; that, at the date of this transaction, one Allen was a director, stockholder, and the cashier of said bank, and then and there materially altered said note, and changed defendants' liability, by inserting the word "two" between the words "at" and "per cent," the word "month" between the words "per" and "from," and the word "date" between the words "from" and "until," thereby making the note read, "with interest at two per cent per month from date until paid"; that such alteration was without the knowledge or consent of defendants, and was a forgery and fraud upon the defendants, and the note was thus rendered null and void; that they repudiated this alteration, and refused to pay as soon as they learned that it was altered. Plaintiff demurred for that the facts pleaded in the answer were not sufficient to constitute a defense. This demurrer was argued, and the court overruled the same, and the plaintiff standing upon and abiding by his demurrer, judgment was rendered for defendants and against the plaintiff, to which plaintiff excepted. The plaintiff then appealed to this court.

The demurrer admitted all the facts well pleaded in the answer. So we have the case. The note was made and delivered to payee, as shown above, before maturity. It was indorsed by the payee to the bank, and was then and there filled up by the bank without the knowledge or consent of the makers, so that it reads, "with interest at two per cent per month from date until paid." The questions presented by the assignment of errors and the argument of counsel here are:

1. Does such a note, with such blanks, thereby carry authority to the purchaser thereof to fill the blanks in the manner here shown, whereby the rate of interest is changed from the legal rate, viz., ten per cent per annum, to twenty-four per cent per annum? We answer, not: Rainbolt v. Eddy, 34 Iowa,

440; 11 Am. Rep. 152; Bank v. Stowell, 123 Mass. 196; Holmes v. Trumper, 22 Mich. 427; 7 Am. Rep. 661.

2. Is the note vitiated and avoided by such change in its terms by the purchaser, without the knowledge or consent of the makers? We answer that it is, for thereby it ceases to be the promise they made, and the effect is the extinguishment of the promise: 1 Greenl. Ev., sec. 565; McGrath v. Clark, 56 N. Y. 35; Inglish v. Breneman, 5 Ark. 377; Coburn v. Webb, 56 Ind. 96.

The judgment in the case ought to be affirmed.

RISING, C., and MACON, C., concurred.

By COURT. For the reasons assigned in the foregoing opinion, the judgment is affirmed.

FILLING BLANK FOR RATE OF INTEREST in note by the holder, — whether constitutes alteration avoiding the note: Fisher v. Dennis, 65 Am. Dec. 534, and note; Rainbolt v. Eddy, 11 Am. Rep. 152, and note; Holmes v. Trumper 7 Id. 661, note 669.

FILLMORE V. WELLS.

[10 COLORADO, 228.]

ATTORNEY'S LIEN IS NOT LIMITED TO COSTS or to taxable fees, in Colorado, but it reaches all fees due for services rendered, whether the amount has been agreed upon or is to be settled in suit as upon a quantum meruit. ATTORNEY'S LIEN, IN COLORADO, IS NOT LIMITED TO COMPENSATION for ser vices rendered by the attorney in procuring the judgment upon which he relies.

ATTORNEY'S LIEN, IN COLORADO, ATTACHES as well to judgments involving an interest in real property as to mere money judgments.

WHERE ATTORNEY NEGLECTS TO PROCEED TO ENFORCE HIS LIEN for compensation under a judgment involving an interest in land until the judg ment debtor has discharged his liability, or an innocent third party has, in good faith and for valuable consideration, purchased the land, the attorney will be held to have waived and lost his right to look to the debtor on one hand and the land on the other for his compensation. ATTORNEY'S LIEN FOR COMPENSATION will support a suit in equity, where the employment is questioned and the amount unliquidated, and having assumed jurisdiction to enforce the lien, equity will retain it for all pur poses, determining the incidental though material legal questions involved.

ATTORNEY'S LIEN IS EQUITABLE RIGHT or privilege. It is not property in the thing which gives right of action at law, but a charge upon the thing which is protected in equity, though law courts may recognize it when the res is in possession of the leinor and the owner is seeking to deprive him of it.

WHERE ATTORNEY'S LIEN ATTACHES UNDER JUDGMENT involving an interest in land, and the latter afterwards becomes a trust estate for several wards, an equitable action will lie to directly enforce the lien against and upon a specific part of the ward's estate, without first obtaining judgment against the several guardians.

IN EQUITABLE ACTION TO ENFORCE ATTORNEY'S LIEN under a judgment concerning an interest in land which afterwards becomes a trust estate belonging to wards, testimony as to facts which occurred subsequent to the ancestor's decease is admissible.

EQUITY EXERCISES SOUND DISCRETION, without adhering to any inflexible rule, in determining whether there has been a misjoinder of parties. WHERE ALLEGED MISJOINDER OF PARTIES appears on the face of the complaint, and is demurred to and overruled but an answer is filed and the trial proceeded with, the defendant waives his right to insist on the alleged error in the appellate court. FINDING OF REFEREE AND COURT, as to what would be reasonable compensation for services rendered as attorney, will not be disturbed when founded on the decided weight of expert testimony.

WELLS AND SMITH, attorneys, commenced suit in equity on behalf of J. Norman and J. S. Fillmore, minor heirs of J. S. Fillmore, deceased, and against J. J. Reithman, to recover certain real property, together with the rents and profits thereof. They were so employed by the guardian of such heirs, and prosecuted the suit to a successful termination, both in the lower court and on appeal. Pending the proceedings, one Macon became a member of the firm,-Wells, Smith, and Macon, attorneys, and participated in prosecuting the suit. When suit was instituted, one Kershow was guardian for said heirs; such guardian was succeeded by one Irwin, he was succeeded by one Charles, and he in turn by one Patterson, one of the present defendants. The employment of said attorneys is duly proved and recognized. Wells, Smith, and Macon bring the present suit in equity, seeking to have the amount of their fees determined and adjudged a lien upon the Reithman decree, and the land recovered thereunder. They obtained a decree for six thousand dollars, to be paid into court by Reithman, or upon his default it was decreed that execution should issue, and if said amount could not be collected out of his estate, then the land recovered under the judgment against him should be sold to pay the amount. From this decree the appeal is taken. The complaint was demurred to on the grounds of misjoinder of parties plaintiff, misjoinder of causes of action, and non-joinder of parties defendant, namely, the three guardians named above who resigned before the institution of the present suit, and prior to the termination of the first suit. The law relating to attorneys' liens is found in

Colorado General Statutes, section 85, as follows: "All attorneys and counselors at law shall have a lien upon any money or property in their hands, or upon any judgment they may have attained [obtained] belonging to any client, for any fee or balance of fees due, or any professional service rendered by them in any court of this state; which said lien may be enforced by the proper civil action."

H. C. Dillon, for the appellants.

Wells, Smith, and Macon, for the appellees.

By Court, HELM, J. The nature and scope of the attorney's lien at common law have been considered in a large number of cases. Upon some of the various questions involved in such consideration, there is no little contrariety of judicial opinion. But this lien in Colorado is regulated by statute; and several of the matters upon which such diversity of opinion exists are thus effectively put at rest.

Our statute recognizes both the general and special branches of the attorney's lien as it was enforced at the common law; but in some important particulars this lien under the statute is much more complete and satisfactory than it is at the common law. The statutory lien is not limited to costs or to taxable fees. It reaches all fees due for services rendered, whether the amount of such fees has been agreed upon or is to be settled in suit as upon a quantum meruit. Nor is it limited to compensation for services rendered by the attorney in procuring the judgment upon which he relies. In this respect it is more comprehensive than the mechanic's lien; it covers a balance legally due him for any and all professional services theretofore rendered his client. While the meaning of the statute in these respects is clear, some other matters connected with the principal subject are not left wholly free from doubt. Counsel for appellant have succeeded in presenting several questions that are both interesting and perplexing. These questions will be briefly considered in their appropriate order.

1. Does the lien given by this statute upon judgments include a decree awarding plaintiff an interest in lands, and thus subject the realty recovered to the payment of the attor ney's fee?

There are a few decisions which seem to sustain the attor ney's right to look, through his lien, to the land for his taxable fees in such cases; but the weight of authority undoubtedly