Potter v. Ajax Mining Co.

• Decision Date: 11 July 1900
• Citation: 22 Utah 273,61 P. 999
• Court: Utah Supreme Court
• Parties: JOSEPH F. POTTER, RESPONDENT, v. THE AJAX MINING COMPANY, APPELLANT

61 P. 999

22 Utah 273

JOSEPH F. POTTER, RESPONDENT, v. THE AJAX MINING COMPANY, APPELLANT

Supreme Court of Utah

July 11, 1900

Appeal from the Fifth District Court Juab County. Hon. E. V Higgins, Judge.

Action by plaintiff for personal injuries alleged to have been inflicted through the negligence of defendant company. Defendant company effected a compromise with plaintiff direct without considering plaintiff's attorneys. Plaintiff's attorneys in this action seek to prosecute the same for their benefit claiming a lien on plaintiff's cause of action. From a judgment in favor of the attorneys and fixing their compensation defendant appealed.

Affirmed.

Messrs Bennett, Harkness, Howat, Sutherland and Van Cott, for Appellant.

The contract between the plaintiff and his attorneys is against public policy and void, and that being the case, this suit being maintained, in the name of the plaintiff, solely for the purpose of enforcing the contract and establishing a lien on the plaintiff's cause of action against the defendant it cannot be enforced.

But if the contract between the plaintiff and his attorneys was one that could be enforced by the attorneys, still there can be no recovery in this case because the attorneys have no lien upon the plaintiff's cause of action.

At common law an attorney had a lien upon papers and money of his client in his hands as attorney, and also upon any judgment which he may have recovered for his client. But an attorney has no lien at common law upon his client's cause of action. At common law he could acquire a lien upon his client's cause of action only in two ways:

If the cause of action was in its nature assignable, then the client could assign to this attorney the cause of action as security for his attorney's fees, and if the opposing party knew of the assignment, then he could not settle with the plaintiff and disregard the assignment of the cause of action to the attorney, but the attorney did not acquire thereby an attorney's lien. The assignment would have been just as operative if the client had made it to his grocer or to his butcher, as to the attorney.

The only way by which an attorney could acquire a lien upon his client's cause of action, was when he obtained judgment upon it, and the cause of action became merged in the judgment.

But neither of these principles can assist the plaintiff in this case. The cause of action in this case was for personal injuries sustained by the plaintiff, and the cause of action being ex delicto, it was not assignable. Causes of action ex delicto are not assignable at common law, and can only be assigned when the statute so provides. Railway Co. v. Ackley, 49 N.E. 222; Coughlin v. Railroad Co., 71 N.Y. 443; Kansas Co. v. Behm, 54 Kan. 751; Central R. Co. v. Brunswick R. Co., 87 Ga. 386.

The plaintiff's cause of action was for personal injuries to himself, and therefore under the law of this State, he could not have assigned his cause of action to anyone else, because unless it is expressly authorized by statute, a cause of action for personal injuries is not assignable. Railway Co. v. Ackley, (Ills.) 49 N.E. 222.

That being the case, the contract between the plaintiff and his attorneys cannot be considered to be an equitable assignment. No right to, or interest in, or lien upon the cause of action passed to the plaintiff's attorneys by the contract unless the common law gave to the plaintiff's attorneys a lien upon the plaintiff's cause of action. Notwithstanding the provisions of the contract between the plaintiff and his attorneys, that the plaintiff should not settle the suit between himself and the defendant without the consent of the plaintiff's attorneys, the plaintiff had the absolute right at any time to settle and compromise the suit. Railway Company v. Ackley, supra; Coughlin v. Railway Company, 71 N.Y. 443.

Even if the plaintiff's attorneys had a lien under the statute, which is a copy of the New York statute adopted in 1879, yet under the rulings of the courts of New York the plaintiff would still have the right to settle his cause of action without his attorney's consent. Lee v. V. O. Co., 126 N.Y. 579; Poole v. Belcha, 131 N.Y. 200; Peri v. Railway Co., 152 N.Y. 521-7; Printing Co. v. Printing Co., 38 N.Y.S. 784.

Messrs. Powers, Straup & Lippman, and Joseph E. Page, Esq., for respondent.

"Upon a second appeal, when the questions are the same, this court will not reverse its rulings as made on the first appeal." Venard v. Green, 4 Utah, 458; Brim v. Jones, 13 Utah 440; National Bank v. Lewis, 13 Utah 509; Krantz v. Railroad, 13 Utah 1; Silva v. Pickard, 14 Utah 245; Reese v. Morgan, Min. Co., 54 P. 760; Horton v. Jack, 115 Cal. 29; Allen v. C. C. R. Co., 22 Colo. 238; 43 P. 1015.

The principle of res adjudicata on a second appeal of the same cause applies to all questions which might have been decided as materially involved in the case, whether actually decided or not. Ency. Plead. & Prac. Vol. 2, p. 380; and citing numerous cases from eleven different states; Bradley v. Norris, 67 Minn. 48, 69 N.W. 624; Com. v. Tate, Ky. L. 1045, 33 S.W. 405; Paducah L. C. & I. Co. v. Cochran, (Ky.), 37 S.W. 67.

Should this court, however, hold that it will give further consideration of the errors in the premises, we contend that the trial court under the circumstances rightfully set aside said order of dismissal. The proof of the fraud and collusion of the said settlement of the cause to cheat and defraud respondent's attorneys, was properly and sufficiently shown to the court, who because of such said fraud and collusion set aside said order. Potter v. Ajax Min. Co., 5u Pac. 270, and cases there cited; Sewing Machine Co. v. Bontelle, 56 Vt. 570; Walker v. Sargeant, 14 Vt. 247, with notes; McKenzie v. Wardwell, 61 Me. 136; Andrews v. Morse, 12 Conn. 444; Hister v. Den, 17 N. J. L. 438; People v. Pack, 74 N.W. 185; In re Wilson, 12 F. 235; Koons v. Beach (Ind.), 45 N.E. 601, 46 N.E. 587; Justice v. Justice, 115 Ind. 201; Howard v. Osceola, 22 Wis. 454; Marquat v. Mulvey, 9 How. Pr. 460.

"The doctrine of champerty and maintenance does not prohibit an attorney retained in a case from advancing the necessary incidental costs of the litigation; and even though he advances the money to pay such costs without special agreement, he may recover from his client the amount so advanced."

In order to be champertous, there must be "an indemnity against the client's liability to pay costs." Am. & Eng. Encys. Law (2d Ed.), Vol. 5, p. 829; and cases there cited both from English courts and from our States.

Also, where persons are poor, it has been frequently held one may absolutely pay his costs of suit and the same is not champertous or otherwise unlawful. Dunne v. Herrick, 37 Ill.App. 180; Perrine v. Dunn, 3 Johns. Ch. 508; Sahpley v. Betlowi, 4 N.H. 347.

However, if there shall be ground for holding said contract void, we again here urge as we did on the former appeal, that appellant, not being a party to such contract but a stranger thereto, and the same not in any wise having been made for its use or benefit, cannot assert or defend any claim or defense arising thereunder or thereto. And even if appellant had the right to assert any claim or make any defense to the said contract because of it being champertous, it is not in position to be heard thereon, for such defense was not plead. Croco v. R. R., 54 P. 988, and cases cited; Brumback v. Oldham, 1 Idaho, 709; Allison v. Chicago R. Co., 42 Iowa 274; McMullen v. Guest, 6 Texas, 275; Bliss on Code Pleading, S. 364; Moore v. Ringo, 82 Mo. 468; Suit v. Woodhall, 116 Mass. 547; Dickson v. Burke, 6 Ark. 412; 2 Saunders Pl. 1041; Ency. Pl. & Pr. title Champerty; Gage v. Du Puy, 137 Ill. 652; 24 N.E. 541; Hart v. State, 120 Ind. 83; 21 N.E. 654; Zeigler v. Mize, 132 Ind. 403; 31 N.E. 945; Com. R. M. F. Ins. Co. v. Way, 62 N.H. 622; Courtright v. Grimes, 42 Neb. 701.

MINER, J., delivered the opinion of the court. BARTCH, C. J., concurs. BASKIN, J., dissents.

OPINION

MINER, J.

STATEMENT OF FACTS.

This cause was before this court on a former appeal, and is reported in 19 Utah 421, 57 P. 270. The statement of facts as found in that case are substantially the same as in this, the trial being upon, substantially, the same state of facts. It appears from the record that, on October 11, 1897, plaintiff filed his verified complaint against the defendant in Juab county, alleging that he was injured through the negligence of the defendant while in its employ, and prayed judgment in the sum of $ 15,000. The complaint was signed by J. E. Page, and Powers, Straup and Lippman, attorneys for the plaintiff. On October 30, 1897, the defendant, by its attorneys, filed its verified answer denying all the material allegations in the complaint. Prior to the commencement of this suit, and on the 23d day of July, 1897, said plaintiff entered into a written contract with the said attorneys, Page, and Powers, Straup & Lippman, agreeing to give said attorneys, as full compensation for their services in said cause, one-half of any amount that may be recovered, either by way of judgment or settlement of said cause, no settlement to be made without the consent of both parties to the agreement, and that the attorneys should advance the necessary court costs and witness fees. Said attorneys afterwards advanced the necessary court costs, which plaintiff testified the attorneys loaned him, because he had no money to enter suit with.

While the case was so pending and undetermined on issues joined one Thomas Marioneaux, an attorney located at Salt Lake City, and who was acting for the London Guaranty Company, which company had insured the defendant company against damages by reason of accidents to its employes, and had...