Dissenting. — I am unable to concur in the conclusion reached in this case by my associates. The decision is largely based upon the theory that the judgment entered on December 5, 1902, had been fully satisfied by the judgment debtors. The record does not bear out that conclusion. While it was satisfied of record, the consideration for such satisfaction was the confession of identically the same judgment and a renewal of the lien of the indebtedness in favor of the judgment creditors. It was not a payment of it. The satisfaction of judgment is as follows:
*192“For and in consideration of a confession of judgment and renewal of the lien of the indebtedness by the Portland Mining Company in favor of Clora Markle Dahlstrom for the sum ■of $85,800.10, with interest at 7 per cent annum from December 5, 1902; and in favor of Alvan Markle for the sum of $68,620.03, with interest at 7 per cent per annum from December 5, 1902, the plaintiffs in the above-entitled action hereby acknowledge full satisfaction of that certain judgment and decree of foreclosure made and rendered in the above-entitled action on December 5, 1902, in favor of said plaintiffs and against the said defendants; and the clerk of tlie above-named court is hereby authorized, empowered and directed to make and enter the full satisfaction of said judgment and decree of foreclosure.
“Signed, sealed and delivered this January tenth, 1905.
“CLORA MARKLE DAHLSTROM,
“By Geo. B. Markle,
“Her Attorney in Fact.”
'The confession of judgment is as follows :
“The Portland Mining Company, a corporation organized and existing under the laws of the State of Oregon, owning real and personal property in Shoshone county, State of Idaho, .by D. F. Sherman, its secretary and duly authorized agent, ■does hereby confess judgment in the above-entitled action in favor of Alvan Markle, plaintiff in said cause, for the sum of .sixty-eight thousand six hundred twenty and 03-100 dollars ■($68,620.03), to bear interest at the rate of■ 7 per cent per :annum from December 5, 1902; and does hereby authorize ■and direct the clerk of the above-named court to enter of ree-.ord judgment for said sum.
“This confession of judgment is for a debt justly due and ■owing to Alvan Markle, the plaintiff, from the Portland Mining Company, defendant, on a judgment of the above-named court made and rendered December 5, 1902, wherein Clora Markle Dahlstrom and Alvan Markle, plaintiffs and the Portland Mining Company and the Markle Banking & Trust Company of ITazelton, Pennsylvania, were defendants, for the *193sum of $39,476.26, principal, $22,896.23, interest, $6,237.24, attorney fees and $10.30, costs in said action.
“This confession of judgment is made in consideration of the said Alvan Marble entering of record the satisfaction of said judgment and decree of foreclosure rendered December 5, 1902, and is a renewal of said indebtedness evidenced by said judgment and decree of foreclosure.
“This confession of judgment is made, executed, acknowledged and delivered under and in pursuance of a resolution of the board of directors of the said Portland Mining Company, duly adopted at a special meeting thereof duly assembled in the City of Portland, State of Oregon, on December 27, 1904, which action of the board of directors was on the same day unanimously approved by a vote of all the stockholders of said corporation, composing a majority of the stockholders in attendance at a meeting of the stockholders of said corporation duly called and assembled in the City of Portland, State of Oregon, on December 27, 1904, and the power thereby conferred upon the undersigned, D. F. Sherman, secretary of said corporation.
“Signed, sealed and delivered January tenth, 1905.”
“PORTLAND MINING COMPANY,
(Seal) “By D. F. SheemaN,
“Secretary.”
The original decree of foreclosure recites that Alvan Maride shall have and recover, etc., $39,476.26 principal, $22,896.23 interest, and $6,237.24 attorney’s fees. Those items are identically the same as are contained in the confession of judgment, and the $6,237.24 attorney’s fee there referred to is the attorney’s fee allowed by the court to Alvan Maride in the original judgment. They are, in fact, one and the same judgment. While the judgment of confession bears a different date from that rendered by the court, it involves identically the same items of indebtedness, no part of which has been paid by the judgment debtors, and gives the court jurisdiction of the same parties. All of the parties appeared' and submitted themselves to the jurisdiction of the court for the *194purpose of having said judgment by confession entered, and the court has the same jurisdiction over them that it would have had if the defendants had been brought in by summons.
I do not think it is right to say that the judgment of December 5, 1902, has been paid. It has simply been satisfied by a re-entry of a judgment involving the same facts determined by the first judgment; it has not been paid. To my mind the case stands just the same, so far as the parties, the facts and the attorneys are concerned, as it would stand had not the original judgment been renewed by the confessed judgment. I do not think that the relation of the parties or of the attorneys has been changed in the least by the entry of the judgment by confession, and there is where I think my associates err in holding that this ease stands just the same-as it would had the judgment debtor in fact paid the judgment. Had the judgment been actually paid, then a very different question would be presented.
I do not think a client should be permitted to swindle his-attorney out of compensation for his labor in procuring his judgment by confessing the same judgment, thus running-away with the fruits of it. If his client has entered into an arrangement with the judgment debtors whereby he may swindle and cheat his attorney, I do not think the court ought, to be very technical in protecting the rights of such a client; and especially where the rights of the judgment debtors are in no manner affected.
In the trial of the original case Alvan Markle produced' witnesses to establish the reasonable value of Featherstone’s--services in procuring said judgment, and the court awarded him $6,237.24. The record shows that he has paid the attorney only $250 of that fee. And now shall this court permit, his client to defraud him simply by confessing identically the-same judgment and thus satisfy the judgment in which such fee was allowed? I do not think it should.
But it is held that the service of the Featherstone motion-on the judgment debtors and the client of Featherstone is not. sufficient to bring them into court. Notice was served on the-attorneys for the judgment debtor. They appeared specially-*195in the proceedings. Notice was served of the pendency of the application of Featherstone by service of a copy of the notice and the application on the clerk of the court, and also by sending by registered mail to Alvan Markle at Hazelton, Pennsylvania, his postoffice address, a copy of said notice and petition, which he received as shown by the registry return receipt contained in the record. The plaintiffs and defendants both appeared and submitted themselves to the jurisdiction of the court at the time the first judgment was rendered. They also appeared and submitted themselves to the jurisdiction of the court at the time judgment by confession was rendered, and we are in accord with the statement of Justice Ailshie’s opinion to the effect that when satisfaction of judgment is entered, “that ends the ease and dismisses the parties from the jurisdiction of the eourt”; but until the judgment is satisfied, the court still has jurisdiction of the ease and of the parties to it for any and all proceedings that may be legally taken therein.
Sec. 4893 of the Rev. Codes provides that when a plaintiff or defendant who has appeared in an action resides out of the state and has no attorney resident of the state in the action or proceeding, the service of papers in such action may be made on the clerk of the court. In both of the above judgments referred to, the parties appeared and gave the court jurisdiction, and under the provisions of said section, notice of any proceedings in such action, after the parties have appeared, must be made upon the clerk, provided the party on whom such service is desired to be made resides outside of the state. Service of the notice of the Featherstone motion was so made upon Alvan Markle. That service, I think, was sufficient, but Featherstone did not stop there. He served on Markle the notice of his motion with a copy of his application, by mail, under the provisions of sec. 4891, Rev. Codes, and the record shows by the return of the registry receipt that Markle received said notice and application. That service was amply sufficient under the statute to give the court jurisdiction to hear said motion and determine the: matter.
*196In Phelps v. Mutual Reserve L. F. Assn., 112 Fed. 453, 50 C. C. A. 339, the court had under consideration a question similar to that under consideration here. The question arose in that case as to whether the court was powerless because the judgment debtor was a foreign corporation, unrepresented by agents in the state. Judge Lurton in preparing the opinion' <of the court asks this question, and says: “Was the court powerless because the judgment debtor was a foreign corporation, unrepresented by agents and having no property subject to execution? As we are advised by an opinion subsequently filed by the very learned judge of the state court, that court regarded a summons upon this supplemental proceeding as wholly unnecessary, because no new cause of action was presented therein, and because the judgment debtor was charged with constructive notice of all steps taken in the case after the original service in the primary action. Aside from any question of the sufficiency of constructive notice where, in the same case, a receiver is applied for, after judgment and return of nulla bona, as a substitute for an alias execution, or an attachment, or other proper writ of process, we are not prepared to say that, if such a supplemental matter be regarded as a new suit or action, the constitutional requirement of due process is infringed if a receiver be appointed before notice. Doubtless the general rule is that, even after judgment, applications for appointment of a receiver should not be entertained without notice. (Beach, Bq. Prac., sec. 730, and eases cited.) ‘But,’ says the author, ‘the rule requiring notice is not so inflexible as to prevent the court from proceeding in cases where it is impracticable to give legal notice, as in the case of absconding or nonresident defendants, or in case of great emergency demanding the immediate interference of the court.’
“The ground upon which the court below proceeded was that there was no such vitality remaining in the primary suit as to justify any kind of supplementary proceedings. To quote the figurative, yet forcible, language of Judge Evans, ‘the whole so-called supplemental proceeding was an attempt to graft a living branch upon a dead stalk. ’ For this reason, *197said the judge, ‘the filing of the supplemental petition and the action of the court appointing a receiver thereupon will be treated as nullities.’ The metaphor, as we have already seen, is not apt. The jurisdiction of the state court had not been exhausted by the rendition of its judgment; for, under well-settled rules of general jurisprudence, it continued for the purpose of enforcing satisfaction of that judgment.”
We think the suggestions there are applicable to this case, and a rule requiring service of notice is not so inflexible as to prevent the court from proceeding at all unless personal service is made, and we think there is sufficient vitality remaining in an action that has gone to judgment to justify supplemental proceedings for its collection and to protect the attorney in the collection of his fee, and such vitality continues until the judgment has been fully paid and satisfied,— not merely renewed.
Alvan Markle is a nonresident of the state. The jurisdiction of said court was not exhausted by the rendition of its judgment, for under welbsettled rules of general jurisprudence it continues for the purpose of enforcing satisfaction of that judgment. This matter in no way affects the defendants. They have not paid the judgment, and in law it matters not to them whether they pay a part of it to the attorney for Marble or not. This is a proceeding after judgment. The judgment was rendered December 5, 1902, and the plaintiff, a nonresident, has not proceeded to collect said judgment, although nearly eight years have expired since the judgment was entered, and has absolutely refused to pay his attorney the fee which was allowed him by the court. We have no statute prescribing the procedure in such a case as the one at bar, but we think the procedure adopted in this ease is proper, equitable and fair to all of the parties interested. I do not think it necessary for the attorney to bring an action at law in the regular manner and attach the judgment and thus fasten a lien upon it.
Mr. Justice Ailshie states as follows: “In the absence of a statute, however, the courts, either in the exercise of their equitable jurisdiction or under the theory of their absolute *198power, control and authority over the judgments and processes of their own courts, have announced various and sundry rules for the protection of attorneys in the collection of their fees and in declaring equitable liens against judgments procured by the attorney.” I concur fully in that statement. I think that the court in this ease ought to exercise its equitable jurisdiction and so far control this judgment as to compel the judgment creditor, Alvan Markle, to pay to his attorney the amount awarded by the court as an attorney’s fee. This court has held that the client is not entitled to recover any larger attorney’s fee than he pays his attorney, and the presumption In this ease is that the amount allowed by the court was the reasonable value of the attorney’s services and no more. (Jones v. Stoddart, 8 Ida. 210, 67 Pac. 650; Broadbent v. Brumback, 2 Ida. 366, 16 Pac. 555.)
Mr. Justice Ailshie quotes from a note by Mr. Freeman to Hanna v. Island Coal Co., 51 Am. St. 257, as follows: “Little is known of its origin, but the principle has long been recognized ‘that a party should not run away with the fruits of the cause without satisfying the legal demands of his attorney by whose industry and, in many instances, at whose expense, those fruits are obtained.’ ” Apparently Mr. Justice Ailshie is in accord with the sentiment there expressed, but proceeds at once to let Markle run away with the fruits of this litigation, on the ground that the court did not have jurisdiction under the service of notice as made, to which I am not inclined to assent.
The sole controversy here arises between the attorney and his client as to the attorney’s equity in the existing judgment, and the client has been brought in in this proceeding by proper service of the notice of this application and was given opportunity to appear and thus have his day in court. But after proper notice was served upon Mm of this proceeding, he declined to appear and is in default and has thus confessed the justness of Featherstone’s application. Mr. Justice Ailshie states as follows: “A very different question arises, however, where the original judgment has been satisfied and the case is no longer pending and the parties are no *199longer in court.” As I view it, tbe judgment has not been satisfied; at most it has only been renewed by all parties ■thereto appearing in court. The judgment by confession is in substance and effect the original judgment and has in no manner been paid. In one sense, the parties are in court until ■the judgment is paid and satisfied; that is, the court has jurisdiction until the judgment has been paid. Mr. Justice Ailshie says: “The statute has specifically and positively authorized the client to enter satisfaction of a judgment in his favor.” I admit that, but this judgment, in my view of the matter, has not been satisfied; it has simply been renewed. Justice Ailshie also says: “"When he [the judgment creditor] does so, [satisfies the judgment] that ends the ease and dismisses the parties from the jurisdiction of the court.” He thereby admits that the court has jurisdiction of the judgment and the parties until the judgment is satisfied. If we carry out the idea of Justice Ailshie to its legitimate result in the judgment by confession, the court has jurisdiction of no parties at all. It is a well-settled rule where both parties appear and consent to a confession of judgment, the court has jurisdiction of the parties. The court had jurisdiction before the renewal was entered, and now will it be contended that the renewal judgment by confession has deprived the court of jurisdiction of the parties to it? The court has jurisdiction of the parties to a judgment by confession.
As before stated, the judgment debtors in this case are not interested in this matter in any way, as they have not paid the judgment, and this proceeding is in fact confined to Alvan Maride and one of the judgment creditors and his attorney. In my view of the matter, it was not necessary for the trial court to set aside the satisfaction of judgment and the judgment by confession and restore the original judgment, as the parties are the same, the rights are the same, the attorney’s fees the same and the subject of litigation the same as they were in the original judgment. I do not think that the court has lost jurisdiction of the parties or of the subject matter simply because the original judgment was superseded or renewed with a judgment by confession which involved the same *200parties, the same issues, the same subject of litigation — everything the same. Since the court found in this proceeding that the judgment by confession was brought about by collusion and fraud, I think the action of the trial court ought to be sustained. There is no statute requiring such notice to be served as a summons, and no such requirement should be made by this court.
Petition for rehearing denied.