Swanston v. Morning Star Mining Co.

• Decision Date: 19 June 1882
• Citation: Swanston v. Morning Star Mining Co., 13 F. 215 (D. Colo. 1882)
• Parties: SWANSTON v. MORNING STAR MINING CO.
• Court: U.S. District Court — District of Colorado

13 F. 215

SWANSTON v. MORNING STAR MINING CO.

United States Circuit Court, D. Colorado.

June 19, 1882

D. J Hayes, and Wells, Smith & Macon, for plaintiff.

L. C Rockwell and J. B. Bissell, for defendant.

McCRARY C. J., (orally.)

This is an action to recover damages for a personal injury. Since the institution of the suit, the plaintiff has, without the knowledge of his counsel, settled it, and the following writing has been filed, upon which the court is now asked to dismiss the case:

(Title of case.) 'Having received eighteen hundred dollars from defendant, in full for all claims, demands, and causes of action sued for in this case, I hereby authorize and direct the clerk of this court, or the court itself, to dismiss this action at my own cost, and I agree not to further prosecute the same, and that defendant is authorized to file this order of dismissal, or use it as it deems proper. ' Signed by plaintiff and sworn to.

The motion to dismiss upon this agreement is resisted, not by the plaintiff himself, but by his attorneys, who say that they had a contract with the plaintiff, whereby, in the event of their success in this suit, they were to receive as their compensation for services one-third of the amount which might be recovered. The question is made as to whether this is a champertous agreement, but we are not disposed to go into that question. It is one, perhaps, of some difficulty, and about which there is a considerable conflict of authority. It would undoubtedly be champertous if either of the attorneys had agreed to pay the costs of the proceeding; but whether a mere contract for a contingent fee of one-third of the amount recovered is champertous, is a question not entirely settled. We do not think it necessary, at all events, to pass upon it in this case.

It is perhaps, not improper to remark, however, that it is not a contract which commends itself very much to the favor of the courts, and this court would not be disposed to go any further than the law requires to uphold it. But even assuming that it is a valid contract as between the plaintiff and his attorneys, the question arises, how can we, by any order of ours, continue this case and carry it on to judgment, after the plaintiff himself has sold the cause of action and received a sum which, he says, is in full satisfaction. The attorneys are not parties to the record; no judgment could be rendered in their favor, and,...