Potter v. Ajax Mining Co.

• Decision Date: 03 May 1899
• Citation: 57 P. 270,19 Utah 421
• Court: Utah Supreme Court
• Parties: JOSEPH F. POTTER, RESPONDENT, v. THE AJAX MINING COMPANY, APPELLANT

57 P. 270

19 Utah 421

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

Supreme Court of Utah

May 3, 1899

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

Action by plaintiff against defendant for damages for personal injuries alleged to have occurred through the negligence of defendant.

After plaintiff had entered into a written contract with his attorneys, agreeing to give them fifty per cent of any amount recovered, as compensation for services and witness fees advanced, and that he would make no settlement without the consent of both parties to the agreement, plaintiff made a settlement with the attorney for a guaranty company which had insured defendant company against damages by reason of accidents to its employees, and signed a release and discharge of the defendant company, plaintiff's attorneys entered a motion, based upon affidavit, to set aside an order of dismissal in the cause, and upon a hearing the order was made, and after answer the case was tried, and a verdict returned on it, and judgment was entered as for attorney's fees for plaintiff's attorneys.

From that judgment defendant appeals.

Reversed.

Messrs Bennett, Harkness, Howat, Bradley & Richards, and Messrs King, Burton & King, for appellant.

This action was brought in October, 1897. The statute giving attorneys a lien upon plaintiff's cause of action did not go into effect until January, 1898, and we contend, therefore, that it did not affect the plaintiff's cause of action, suit upon which had been brought before that time, and where the plaintiff and his attorneys had made a contract for the attorney's compensation before the suit was brought, and consequently before the law under which they claim became operative. At common law the rule was that a statute is never to be construed to operate retrospectively, unless it is required in the most explicit terms. McCarthy v. Perry, 23 Fla. 508; Plumb v. Sawyer, 21 Conn. 351, 355; Fahnestock v. Wilson, 95 Pa. 301; Capelle v. Baker, 3 Hous. (Del.), 344.

It will hardly be contended that in this State a cause of action for personal injuries survives. Causes of action for torts where the injury is to property do survive, but it will not be contended that a cause of action for injuries to the person of the individual survives, and so it can not be assigned or transferred for any purpose so as to give the assignee or transferee any interest in the cause of action itself. That being the case, the plaintiff had the undoubted right to settle his suit with the defendant in this case. Railway Co. v. Ackley, supra.; Coughlin v. R. Co., 71 N.Y. 443.

Our statute, giving an attorney a lien upon a cause of action, is the same as the statute of New York of 1879, and was adopted by our Legislature as a part of the Revised Statutes. The New York courts have held, under the act of 1879, that plaintiff had a right to settle his case without his attorney's consent. Lee v. V. O. Co., 126 N.Y. 579; Poole v. Belcha, 131 N.Y. 200; Peri v. Ry. Co., 152 N.Y. 521, 527; Printing Co., v. Printing Co., 38 N.Y. 784.

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

Plaintiff's attorneys were not bound by said settlement, because,

First, of their statutory lien; and

Second, in cases of fraudulent and collusive settlement and the insolvency of the plaintiff, of their common law lien, and the right to have the settlement vacated, and the cause prosecuted in the name of the plaintiff for their benefit.

The Revised Statutes of Utah which went into effect January 1, 1898, provide:

"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 o lien upon his clients' cause of action or counterclaim, which attaches to a verdict, report, decision, or judgment in his clients' favor and the proceeds thereof in whosesoever hands they may come; and can not be affected by any settlement between the parties before or after judgment." R. S. 1898, Sec. 135.

Prior to the passage of said statute the common law relative to champertous contracts was modified by Section 3683 of C. L., 1888, and no legal restrictions were placed upon agreements between attorney and client. Croco v. O. S. L. R. R. (Utah), 54 P. 985.

The law of 1898 simply added to the law of 1888 in providing an additional and revised remedy by giving attorneys a lien upon the cause of action as well as on the judgment and fund recovered, and gave them enlarged protection from fraudulent and collusive settlements. The latter statute did not for the first time give attorneys a right to claim compensation for services, or a right to enforce such claim, or for the first time give them a lien. For under the common law attorneys had both a retaining lien and a charging lien. The latter lien, in giving an attorney the right to recover his fees from a fund recovered by his aid, and also the right to have the court interfere to prevent payment, settlement, or assignment of judgment in fraud of his claim. Sewing Machine Co. v. Boutelle, 56 Vt. 570; Walker v. Sargeant, 14 Vt. 247, with notes; McKenzie v. Wardwell, 61 Maine, 136; Andrews v. Morse, 12 Conn. 444; Weeks et al. v. Circuit Judges, 73 Mich. 256, 41 N.W. 269; Marquat v. Mulvy, 9 How., Pr., 460; Hister v. Den., 17 N.J.L. 438; People v. Pack (Mich.), 74 N.W. 185; In re Wilson, 12 F. 235; Koons v. Beach (Ind.), 45 N.E. 601; 46 N.E. 587.

The law pertaining to retrospective and remedial statutes is elementary and indisputable, but the difficulty arises in making the application of the principles. We therefore beg leave to refer the court to the following cases in which statutes have been held applicable to pending cases, or in which they have been given retroactive effect, or in which they have been declared remedial. Buckingham v. Moss, 40 Conn. 461; Mason v. Heywood, 5 Minn., 74; Logan v. Logan 77 Ind. 558; Dobbins v. First National Bank, 112 Ill. 553; Winslow v. People, 117 Ill. 152; County of Kossuth v. Wallace, 60 Iowa 508; Wood v. Westborough, 140 Mass. 403; Berry v. Clary, 77 Me. 482; Manf. Co. v. Keyser, 62 Miss. 155.

It is also contended the said contract between the attorneys and plaintiff is champertous and void, and against public policy. In a very recent case this court, on a similar contract, held adversely to such a contention. Croco v. R. R. (Utah), 54 P. 985.

The defense of champertous contract was not pleaded. And in the above case it was held that the question of champerty and maintenance can only be raised by the parties to the contract, and not by any stranger to it, and then must be specially pleaded.

The same ruling was adhered to by this court, in Kennedy v. R. R., 54 P. 989. In view of the above decisions we do not deem it essential to cite additional authorities or to further discuss this branch of the case.

Miner, J., delivered the opinion of the court. BARTCH, C. J., concurring in the result. BASKIN, J., DISSENTING.

OPINION

Miner, J.

STATEMENT OF FACTS.

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 &amp 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, with the agreement that no settlement should be made without the consent of both parties to the agreement, and that the attorneys should advance the necessary costs and witness fees. Said attorneys afterward advanced the necessary fees. 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 employees, and had agreed to indemnify it against such accidents, went to Payson, where plaintiff resided, and where Page, one of plaintiff's attorneys resided, and without consulting with plaintiff's attorneys, induced plaintiff to execute on March 9, 1898, a release and discharge of said defendant to said insurance company of and from all claims and demands, liabilities and causes of action against the said Ajax Mining Company in said cause pending against it for the injury sued for in said action, in consideration of the sum of $ 1,190, then paid by the said company to the plaintiff, and also executed a receipt in consideration of ten dollars, paid by said company to plaintiff, for all wages, loss of time, and damages on account of the accident sued upon, and afterward procured an order to be entered in said court dismissing and discharging said action at the cost of the plaintiff. Thereupon the attorneys for the plaintiff, learning of said settlement and dismissal, entered a motion based upon affidavit, to set aside such order of dismissal. The affidavit set up fraud on the part of the plaintiff and said company, through its attorney, to procure said settlement and dismissal, to defraud the said attorneys without any notice to...