Curtis v. Richards

• Citation: 40 P. 57,4 Idaho 434
• Parties: CURTIS v. RICHARDS, JUDGE
• Decision Date: 06 April 1895
• Court: United States State Supreme Court of Idaho

40 P. 57

4 Idaho 434

CURTIS v. RICHARDS, JUDGE

Supreme Court of Idaho

April 6, 1895

SPECIAL PROCEEDING-CHANGE OF ATTORNEYS.-A motion to change attorneys in a suit pending is a special proceeding and a judgment rendered on such motion is a final judgment from which an appeal to this court may be taken.

ATTORNEY-SWORN OFFICER OF COURT-MORE THAN MERE AGENT.-An attorney is a sworn officer of the court and therefore something more than a mere agent of the client. In his sphere he is as independent as the judge of the court, and in the line of his duty superior to an ordinary agent.

A PARTY CANNOT CHANGE ATTORNEYS WITHOUT PAYING FEES EARNED-ATTORNEY HAS LIEN UPON PAPERS UNTIL FEE PAID.-A party has no right to arbitrarily change his attorney without paying or securing fees earned, and an original attorney is not bound to consent to a substitution or deliver papers upon which he has a lien, until the amount of his just demands are ascertained by a court or referee and paid or secured.

(Syllabus by the court.)

WRIT of error to District Court, Third District.

Reversed and remanded.

A. A Fraser and W. E. Borah, for Plaintiff in Error.

As a condition precedent to the granting of the order discharging the plaintiffs in error as attorneys for defendant. Knott, the court should have required the defendant to pay their fees or satisfactorily secure the same. (Weeks on Attorneys at Law, p. 428, secs. 250, 77, and cases cited; also, p. 640, sec. 367, and cases cited; Mechem on Agency, sec. 856, and cases cited; In re Herman, 50 F. 517; Batell v. Wallace, 30 F. 228; Idaho Rev. Stats., sec. 3999; Butchers Union Co. v. Crescent City Live Stock Co., 41 La. Ann. 355, 6 So. 509; Idaho Rev. Stats., secs. 4893, 4002.)

M. C. Athey and William H. Clagett, for Defendant in Error.

File no brief.

MORGAN, C. J. Huston and Sullivan, JJ., concur.

OPINION

MORGAN, C. J.

This is a proceeding under section 3999 of the Revised Statutes of Idaho. The original action from which this arose was one wherein Richard Cable was plaintiff and William B. Knott was defendant, then pending in the district court in and for Ada county, in which the petitioners, who are attorneys at law, were employed by the defendant to act as his attorneys in defense of his rights in said suit, and they acted as such from the twenty-fifth day of January, 1894, until the fifteenth day of February, 1895, when defendant served a notice upon said attorneys that he discharged them as attorneys in said action, to which notice petitioners replied that, as a condition precedent to said discharge, they required him to pay their fees in said cause, or secure the same. Thereupon the defendant in said cause filed a motion asking that petitioners be discharged by order of the said court. The allowance of this motion was resisted by the petitioners for the reason that defendant had not shown any dereliction of professional duty on the part of the said attorneys in the defense of said suit, nor had he paid or secured the fees of said attorneys for services rendered in said cause. Upon the hearing of said motion the district court finds as follows: "That there has been (1) no dereliction of duty on the part of said attorneys in defense of said cause; (2) that there exists between said defendant and his said attorneys such a condition of mutual ill-will as will prevent them from acting together properly in the confidential relation of attorneys and client; and ordered, that said motion of said defendant to change his attorneys of record be granted"--to which order defendants excepted, and bring said matter to this court on a writ of error.

Counsel for respondent contends that this court has no jurisdiction to review the action of the court below herein. Section 3999 of the Revised Statutes of Idaho gives the district court authority to order a change of attorney upon the application of the client, after notice to the attorney at any time before judgment or final determination. In this case the defendant filed a motion asking for an order changing his attorneys, and substituting M. C. Athey as the attorney for said defendant. This motion, as is stated above, was resisted for the reasons given. This, then, became a special proceeding for the removal of said attorneys, in which the defendant in the court below was the proponent and these attorneys were defendants. By the provisions of subdivision 1 of section 4807 an appeal may be taken to the supreme court from a final judgment in an action or special proceeding commenced in the court in which the same is rendered. As to these parties (the attorneys) this judgment is final; they are dismissed from this case abso...