Gates v. Columbia-Knickerbocker Trust Co.

• Decision Date: 29 May 1916
• Docket Number: 2690.
• Citation: 233 F. 359
• Parties: GATES v. COLUMBIA-KNICKERBOCKER TRUST CO. [a1]
• Court: U.S. Court of Appeals — Ninth Circuit

233 F. 359

GATES v. COLUMBIA-KNICKERBOCKER TRUST CO. ^[a1]

No. 2690.

United States Court of Appeals, Ninth Circuit.

May 29, 1916

Sweeney & Morehouse and William W. Griffin, all of Carson City, Nev and Theodore A. Bell, of San Francisco, Cal., for appellant.

Gifford Hobbs & Beard, of New York City, and Dey, Hoppaugh & Fabian of Salt Lake City, Utah (A. L. Hoppaugh and Charles C. Dey both of Salt Lake City, Utah, of counsel), for appellee.

Before GILBERT, ROSS, and HUNT, Circuit Judges.

HUNT Circuit Judge.

In March, 1913, Joseph Gutman and others, creditors, filed a suit against the Pacific Reclamation Company, a Nevada corporation, asking that a receiver be appointed, the property sold, and the proceeds distributed among those entitled thereto. The Pacific Reclamation Company admitted the facts set forth in the bill of complaint and joined in the request for the appointment of a receiver. George M. Bacon was appointed receiver, and duly qualified as such.

In his amended bill of intervention, Gates, the appellant here, alleged, in substance, that between August 18, 1911, and March 1, 1913, he performed services as attorney and counselor at law for the Pacific Reclamation Company at its request in prosecuting certain suits in the General Land Office and the Department of the Interior, in counseling and advising the Reclamation Company, and in attending in and about its business in respect to relinquishments of certain lands, location of lands, and land matters involving hearings before, and conferences with, the Department of the Interior and certain officials; that in some of the land matters adverse decisions had been rendered by the Commissioner of the General Land Office, and appeals were taken to the Secretary of the Interior; and that valuable lands were saved through appellant's efforts. He estimated his services as reasonably worth $25,000, and alleged that, under and pursuant to paragraph 5376 of the Revised Laws of Nevada (1912), he had a lien in that sum upon and against the 480 acres of certain land owned by the Pacific Reclamation Company, and which became part of its assets by the efforts of appellant; his services having been rendered upon an agreement with the Pacific Reclamation Company to pay a reasonable sum for his services rendered in the Interior Department.

His prayer is for a judgment for that amount against the Reclamation Company, and that he be decreed to have a lien on the 480 acres of land.

Intervener alleged that the Pacific Reclamation Company, in December, 1909, by deed of trust, mortgaged all its property in Elko county, Nev., to the Columbia Trust Company, but that when such deed of trust was made the Pacific Reclamation Company did not own certain lands (480 acres) which it later obtained through the efforts of this appellant, and that the claims of the Columbia Trust Company are subsequent to the lien of this appellant in the 480 acres of land just referred to.

The Columbia-Knickerbocker Trust Company, also an intervener below, appellee here, moved to dismiss the bill for lack of equity, and to strike out those special portions wherein a lien was claimed. The court dismissed the bill, and appeal was taken.

Appellant contends that the statute of Nevada (section 5376, Revised Laws of Nevada) gives him a lien. We quote the section:

'The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim which attaches to a verdict, report, decision, or judgment in his client's favor and the proceeds thereof in whosever hands they may come, and cannot be affected by any settlement between the parties before or after judgment. There shall be allowed to the prevailing party in any action, or special proceeding in the nature of an action, in the Supreme Court and district courts, his costs and necessary disbursements in the action or special proceeding.'

The premise that appellant performed valuable services for the appellee in matters before the General Land Office in the Department of the Interior, which resulted in obtaining title to 480 acres for the corporation, is to be accepted; and, in a general sense, it is correct to say that in the disposition of public lands the Interior Department is a quasi judicial tribunal, and that land officials in their decisions act in a quasi judicial capacity. And we will take it that through appellant's efforts in the Interior Department, the property of the Reclamation Company was enriched by the addition of the 480 acres specially adverted to by appellant. But, notwithstanding these assumptions, we can find no ground for sustaining appellant's claim of lien. The statute of Nevada, supra, giving to the attorney who appears 'a lien upon his client's cause of action or counterclaim which attaches to a verdict, report, decision or judgment in his client's favor, and the proceeds thereof, in whosever hands they may come,' etc., presupposes that 'an action' has been commenced and that the attorney claiming the lien has appeared. 'From the commencement of an action' the attorney who appears has 'a lien upon his client's cause of action or counterclaim.'

This may be called the conferring language of the statute. If the lien is found to exist, it attaches to 'a verdict, report, decision or judgment' in the client's favor, and the proceeds thereof, in whosever hands they may come, and cannot be affected 'by any settlement between the parties before or after judgment. ' This may be described as the reach of the lien. The statute applies in protection of attorneys who appear for parties in actions commenced in the jurisdiction of Nevada. An action means the ordinary legal and formal demand of one's rights from another person, made and insisted on in a court of justice. Black in his Law Dictionary cites the definition of an action given in the Supreme Court of Nevada in Haley v. Eureka County Bank et al., 21 Nev. 127, 26 P. 64, 12 L.R.A. 815, where it was said:

'An action is a legal prosecution by a party complainant,

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