Sandberg v. Victor Gold & Silver Min. Co.

• Court: Utah Supreme Court
• Writing for the Court: BARTCH, J.
• Citation: Sandberg v. Victor Gold & Silver Min. Co., 55 P. 74, 18 Utah 66 (Utah 1898)
• Decision Date: 14 November 1898
• Parties: NELSON SANDBERG, PLAINTIFF v. THE VICTOR GOLD AND SILVER MINING COMPANY, ET AL., DEFENDANTS. FRANK KNOX, RESPONDENT, ARTHUR BROWN AND HENRY P. HENDERSON, CO-PARTNERS AS BROWN & HENDERSON, APPELLANTS

55 P. 74

18 Utah 66

NELSON SANDBERG, PLAINTIFF v. THE VICTOR GOLD AND SILVER MINING COMPANY, ET AL., DEFENDANTS. FRANK KNOX, RESPONDENT, ARTHUR BROWN AND HENRY P. HENDERSON, CO-PARTNERS AS BROWN & HENDERSON, APPELLANTS

Supreme Court of Utah

November 14, 1898

Appeal from the district court of Juab county, Hon. E. V. Higgins Judge.

Action by plaintiff against defendants in which other attorneys were substituted for appellants. Reversed.

From the order of the court substituting attorneys appellants appeal.

Reversed and remanded.

Messrs Brown & Henderson, for appellants.

The statute, Secs. 117 and 118, requires notice to the attorney to enable him to present his claims if he has any, but the attorneys in this State have a lien on the cause for their fee. Such lien existed at the common law and instead of being changed by statute the effect of the statute has been to protect the attorneys still further than at the common law.

We refer to the following cases on that subject: Wells v Hatch, 43 N. H., 246; In re Paschal, 10 Wallace, 483; Rooney v. Railway Co., 18 N.Y. 368; Ward v. Craig, 87 N.Y. 550; Ely v. Cook, 28 N.Y. 372; Marshall v. Meech, 51 N.Y. 140; Carpenter v. Ryter, 1 Am. Law Register, (N. S.), 419; Currier v. Railway Co., 37 N. H., 223; Stratton v. Hussey, 62 Me. 286; Rice v. Garnhart, 35 Wis. 282; Curtis v. Richards, 40 P. 57; In re Herman, 50 F. 517; Gray v. Denhalter, Utah, ; Railroad Co. v. Wilson, 138 U.S. 507.

Wherever in the course of the proceedings an order is made final in its nature, affecting the rights of persons, such person has a right of appeal. Rooney v. Railway Co., 18 N.Y. 368, Marshal v. Meech, 51 N.Y. 140.

In Curtis v. Richards, 40 P. 57, an appeal was allowed in the name of the attorney from an order of substitution, though not a party of the original record. This was a case from the sister State of Idaho under a practice identical to our own.

Hiram W. Gray, Esq., Messrs. Dey & Street, and Messrs. Booth, Lee & Gray, for respondent.

This is not an appealable order. When the framers of Sec. 9 of the Constitution of this State used the terms "From all final judgments of the District Court there shall be a right of appeal to the supreme court," they intended to deny the right of appeal to the supreme court in all other cases. North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co., 14 Utah 155; Eastman v. Gurrey, 14 Utah 169.

A judgment to be final must dispose of the case as to all parties, and finally dispose of the subject matter of the litigation on the merits of the case. North Point C. I. Co. v. S. L. C. Co., supra; Champ v. Kendrick, 30 N. E., 635; Masterson v. Williams, 11 S.W. 531; Schuttz v. McLeon, 18 P. 775; Watkins v. Mason, 4 Pac., 524; State v. Templin, 23 N. E., 697.

At common law an attorney had no lien, strictly speaking, for his compensation, on a judgment recovered by him for his client, for the reason that the only essential of a lien, possession was necessarily wanting. 3 Am. & Eng. Enc. of Law, 2d Ed., 450.

An attorney has no lien for fees and costs upon a judgment in favor of his client. Hogan v. Black, 66 Cal. 41; Casey v. March, 30 Tex. 185; Forsythe v. Beverage, 52 Ills., 268; Hill v. Brinkley, 10 Ind. 102; Baker v. Cook, 11 Mass. 238.

Before judgment it was very clear the plaintiff might settle the action and discharge the defendant without, or against the consent of his attorney, who had no lien on the cause for his fees: Henchey v. Chicago, 41 Ills., 136; Getschell v. Clark, 5 Mass., 309; Pulver v. Harris, 52 N.Y. 73.

BARTCH, J., delivered the opinion of the court. ZANE, C. J. and MINER, J., concur.

OPINION

BARTCH, J.

STATEMENT OF FACTS.

It appears that the action, out of which this proceeding has grown, was originally commenced by the plaintiff, Sandberg, against the Victor Gold and Silver Mining Co. and the National Bank of the Republic, of which bank, Frank Knox was president, to foreclose a lien on the property of the mining company. By agreement between the attorneys for all the parties to that suit, it was stipulated that the trial of the action should be delayed, until after the determination of other litigation then pending between the Mining Co. and the bank. During that delay the plaintiff, Sandberg, sold and assigned his claim and cause of action to Knox, the president of the bank, one of the defendants in the case, which assignment was placed with the files in the action. Judgment was then taken in the name of the plaintiff, by default, without the knowledge of his attorneys, which judgment was afterwards, on motion of plaintiff's attorneys, the appellants herein, set aside by the court, the same having been entered in violation of the agreement between the attorneys for the parties to the action. The attorney for Knox then moved the court that Hiram Gray and Andrew Howat be substituted, as attorneys for the plaintiff, in the place of Brown & Henderson. This motion was resisted by Brown & Henderson, who insisted that the substitution ought not be made until they were paid for their services in the litigation. The testimony showed, and the court found, that the reasonable value of their services was $ 400, and that nothing had been paid them.

From the affidavit of Henderson, one of the appellants, it appears that the assignment was made by their client without their knowledge; that upon hearing of the judgment being taken, affiant communicated with plaintiff, asking him if he had made the transfer; that plaintiff denied having sold or transferred the cause of action, and stated that, if any writing to that effect existed, it was fraudulent and void; that thereupon affiant sent for Sandberg at Tintic, and they together proceeded to Nephi where the proceedings were had; that being there shown the instrument of assignment, Sandberg finally admitted its execution, and acknowledged that his former statement denying the assignment was a falsehood; that he had concealed the fact of the assignment from his attorneys; that since the assignment to Knox, and up to the time of affiant's knowledge of it, the plaintiff continued to consult the firm of Brown & Henderson as his attorneys; that by reason of concealing from them the fact of the pretended substitution of attorneys, and assignment of the claim and cause of action, and denial thereof by plaintiff, they were put to large expense to protect what they believed to be the rights of their client, and to prevent fraud, protect their own rights and preserve their integrity as attorneys; and that affiant is advised and believes that the plaintiff and his assignee, have acted in bad faith and in fraud of the rights of Brown & Henderson.

The affidavit of Henderson does not appear to be denied except that Sandberg, by affidavit in general terms, said that he sold, assigned and transferred his cause of action to Frank Knox in good faith, and with no intent to delay, hinder or defraud any person.

The court granted the motion of Knox, the assignee, to substitute the attorneys, without imposing the condition that Brown & Henderson should first be paid, as insisted upon by them. Thereupon Brown & Henderson appealed.

After stating the facts as above, BARTCH, J, delivered the opinion of the court.

The respondent contends that the order made in this case is not a final judgment, and hence not appealable, and that Brown & Henderson were not parties to the original suit. While they were not parties of record in that suit, still they were counsel, and were parties to the proceedings wherein the order complained of was made. The same question was raised between practically the same parties in the case (decided at the present term) of the Victor Gold and Silver Mining Company v. The National Bank of the Republic, where the plaintiff and Brown & Henderson were the appellants. In that case the controversy on appeal was over a judgment for costs. On a motion to off-set that judgment against other judgments which had been obtained against the plaintiff, the trial court granting the motion, ordered the judgment for costs to be satisfied of record, holding that the plaintiff's attorneys, Brown & Henderson, who had advanced the costs, had no lien on the judgment for the same. From the order so made an appeal was taken, and this court in deciding whether or not an appeal would lie, said: "That decision as to those costs, and the rights of the plaintiff in the original action and his attorneys, was a final judgment, preventing either of the parties from ever recovering them in any way. The order was made in a matter distinct from the general subject of litigation, and was final in its nature, affecting only the parties to the particular controversy. By that judgment or order the rights of the appellant to the costs were absolutely determined, and, therefore, they had a right to bring the cause to this court for review." So, in this case, the order which constitutes the basis of appeal, was made in a proceeding distinct from and independent of the general subject of controversy. It finally and conclusively, except on appeal, determined the rights of the parties, as to the subject-matter of such proceeding, and on the authority of the case referred to, we held that the order made was a final judgment and appealable.

The appellants contend that in this State attorneys have a lien at common law, on the cause of action for their fees. We do not think this contention well founded. There is no such lien in this State at common law, nor have we noticed or been cited to any statute creating such a lien as is here contended for. To hold that a lien attaches to a cause of action before judgment would be to place parties to controversies at the mercy of an attorney, for it would not be within...