(dissenting), I dissent. In my opinion the record in this case affirmatively shows that the Federal court of this dis*260fcrict first obtained, and has never relinquished, jurisdiction over the controversy before us; and hence, under familiar principles applicable to such situations, that court should be permitted “to determine the controversy, and to fully perform and exhaust its jurisdiction, and to decide every issue or question properly arising in the case,” and dispose of all “proceedings which are ancillary or incidental” thereto. 15 C. J. 1161, 1162.
In order to properly present my views, I find it necessary to first make some reference to the facts in the case.
On October 30, 1916, one John B. Eranz was injured by the defendant railway company at Begent, North Dakota. On November 16, 1916, he entered into a written contract with the plaintiff, Simon, who is an attorney at law, duly licensed to practice in this state, whereby Simon was reained as Eranz’s attorney and agreed to prosecute an action against the railway company for such injury on a contingent-fee basis. The contract provided, in substance, that said Simon would prosecute said action to its final determination in consideration of 25 per cent of the total amount recovered in said action, or the total amount of settlement made, if settlement was made before the final determination of said action in court; and that said Eranz would give to said Simon 25 per cent of the amount recovered either in the final determination of the action in court or final settlement with the railroad company, after the costs and expenses of the court proceedings in said action had been deducted from the amount recovered or the amount of settlement obtained. Thereafter on November 23, 1916, the plaintiff commenced an action against the railway company for $50,000 damages, and served no* tice of an attorney’s lien for 25 per cent of the amount demanded in the complaint, to wit, for the sum of $12,500. The action was thereafter removed by the defendant railway company to the United States district court.
Subsequently another action was commenced by Franz against the defendant railway company upon the same cause of action. The second action was commenced in the United States district court of this district. The attorneys representing Franz in the second action were Jacobson & Murray. Before commencing such action Jacobson & Murray prepared a formal dismissal of the action which the plaintiff had instituted for Eranz, caused such stipulation to be executed by Franz, and forwarded *261it to the clerk of the United States district court. It appears that the United States district court refused to recognize the stipulation of dismissal, and required that notice be given to Simon of the application to dismiss the action. The result was that both actions appeared upon the calendar of the United States district court which convened at Bismarck in May, 1917. At that time the application for dismissal of the action instituted by the plaintiff, as attorney for Franz, was heard, with the result that on May 18,1917, the court entered an order to the effect that such action be dismissed upon the condition that 25 per cent of the amount agreed upon to be paid to Franz in settlement of his claim for damages in said suit be retained by the defendant railway company “pending the further order of said court, upon the claim of Charles Simon for legal services rendered the plaintiff upon said claim for damages, determining the amount due said Charles Simon under his contract with Franz.” It appears that on the same day a written stipulation was filed in the second action. Such stipulation was dated May 17, 1917. It provided that the action should be dismissed upon the payment by the railway company of the sum of $11,000, subject to the condition that the defendant railway company should protect itself by the retention of sufficient funds, or that it might be indemnified by the plaintiff against all claim of Charles Simon on account of lien or claim for which said railway company might might become liable to said Charles Simon. Thereafter the railway company paid the amount provided for in the stipulation, viz., $11,000. Apparently the money was paid through the First National Bank of Mott, and with the understanding that such bank should retain a sufficient amount to cover the claim of the plaintiff. There was introduced in evidence an undertaking executed by the First National Bank of Mott and one Trousdale and Mueller in favor of the defendant railway coinpany. The undertaking recites the facts relative to the two actions having been brought upon the same cause of action; that the action instituted by the plaintiff as Franz’s attorney was dismissed by the Federal court, “subject to the claim of lien by the said Charles Simon upon any funds recovered or paid by the said railroad company in settlement and satisfaction of said claim of John B. Franz,” and that Franz and his attorneys intend to contest the claim and lien of said Simon. The undertaking further provides that “for and in consideration of the payment to the said John B. Franz of the said sum *262of eleven thousand dollars ($11,000) and a deposit of a sufficient portion thereof in the First National Bank of Mott, North Dakota,” receipt of which is acknowledged, the said First National Bank of Mott, Trousdale and Mueller do undertake and agree to defed all actions or proceedings brought by Simon, or on his behalf, and to pay any and all sums required to be paid to him on account of his said claim.
The plaintiff brought this action to recover from the defendant an amount equal to that which the Federal court had required that the defendant should retain “pending the further order” of that court. The action was tried to the court without a jury, and resulted in findings and conclusions in favor of the plaintiff, and defendant appealed from the judgment and demanded a trial anew in this court.
It is undisputed that there was a written contract between the plaintiff and Franz. The contract expressly provided that a certain percentage of the amount recovered by Franz, either by judgment or upon settlement, should be paid to Simon. The plaintiff, as Franz’s attorney, commenced an action in accordance with the terms of that contract. It is time Franz had the right to discharge the plaintiff. He also had the right to compromise and settle the action without Simon’s consent. But he could not, by either method, abrogate the contract or defeat any lien which Simon had acquired. In Moran v. Simpson, 42 N. D. 575, 173 N. W. 772, this court (in disposing of the contention that when the attorney and client have once agreed upon the amount of compensation it cannot subsequently be increased), said: “Whatever may be the rule in other states, we are satisfied that this rule does not apply in this state. We have a statute which treats of the right and power of an attorney in making a contract. It is § 7789, Compiled Laws 1913, which, so far as material to this case, reads thus:' ‘The amount of fees of attorneys, solicitors, and counsel in civil and criminal actions must be left to the agreement, express or implied, of the parties.’ The language of this statute is plain and cannot be misunderstood. It confers upon the attorney the right to malee a contract with his client upon such terms as he and the client may finally agree.”
In Schouweiler v. Allen, 17 N. D. 510, 516, 117 S. W. 866, this court said: “A suitor has the right to discharge his attorney, either with or without reason, at any time during the progress of the litigation which he was employed to conduct, provided his compensation is *263fwid or secured” In Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 N. D. 112, 151 N. W. 879, Ann. Cas. 1917D, 908, this court held that the attorney’s lien given by § 6875, Comp. Laws 1913, “when sought to be .asserted in an action or proceeding for the recovery of damages for personal injuries, attaches to that into which the right of action is merged. If a judgment is recovered the lien attaches to it; if a compromise agreement is made the lien attaches to it; and in either case the attorney’s lien is such that it cannot be defeated or satisfied by a voluntary payment to his client without his consent,” in a case where due notice of the lien has been given to the defendant.
Ruling Case Law says: “An attorney’s lien is enforceable through the control the courts have of their judgments and records, and by means ■of their own process. If an attorney applies to the court to protect his lien, the court will prevent money from being paid over until his demand is satisfied; and if the judgment debtor pays a judgment to the judgment creditors, after notice of the lien, the court may require him to pay it again to the attorney. This is a power which the court exercises toward its officers and suitors within its jurisdiction.” 2 R. C. L. p. 1083.
“In a number of states it has been held, either by virtue of express statutory authority, or in the exercise of the inherent power of courts to protect their officers, that an attorney whose lien has attached may apply to the court for relief against any disposition of the litigation or judgment thereon by the parties, which may affect his rights.” 2 R. C. L. p. 1083.
Thornton in his work on Attorneys says: “An attorney’s right to a lien for services rendered cannot be defeated by substitution. It is not doubted, of course, that the client may discharge his .attorney at pleasure, and substitute another in his stead; but, in allowing such substitution, it is customary to impose terms whereby the original attorney is protected in his compensation.” Thornton, Attys. at Law, § 617. It has also been held that “the court may require the payment of an attorney’s lien as a condition of the discontinuance or dismissal of the cause, or the entry of a judgment for a stipulated amount where the parties have compromised.” Thornton, Attys. at Law, § 667; National Exhibition Co. v. Crane, 167 N. Y. 505, 60 N. E. 768; Illinois C. R. Co. v. Wells, 104 Tenn. 706, 59 S. W. 1041.
*264It will be noted that when it was attempted to dismiss the action which the plaintiff had commenced for Franz, that the Federal court refused to allow it to be done ex parte upon the filing of the stipulation of dismissal, and ordered a hearing of the matter. At the hearing Simon appeared in person, the defendant railway company appeared by counsel, and Jacobson & Murray appeared as attorneys for Franz. Hence, all parties interested were present or represented at the hearing.
It seems clear that the real purpose sought to be accomplished by the dismissal of the first action was to obtain a substitution of attorneys in the litigation. And it would seem that the -authorities cited above fully justified the Federal court in imposing the conditions which it did in allowing a dismissal of the first action. But even conceding that the order was erroneous, clearly it was not void. The Federal court had jurisdiction of the subject-matter and the parties. The order which it made was not assailed. On the contrary, the parties all acquiesced in and abided by its terms.
The record shows that upon the hearing the Federal court went into the matter quite fully. It considered not only the records and documentary evidence submitted, but interrogated at some length in regard to the facts connected with the preparation of the stipulation of dismissal. At the conclusion of the hearing the Federal court refused to allow the first action to be dismissed, except on the condition that the railway company retain out of the proceeds of the settlement, the amount which the contract between Simon and Franz entitled Simon to- receive upon a settlement of the cause of action involved therein. And in the order of dismissal the court provided that the defendant must retain such amount “pending the further order of this court upon the claim of Charles Simon, . . . determining the amount due said Charles Simon under his contract with Franz.” It seems to me that the only reasonable interpretation which can be placed upon this language is that the Federal court intended to, and did, reserve to itself jurisdiction and control of the moneys involved in this controversy and over the controversy itself. It specifically required the defendant to retain the amount involved in this litigation, pending the further order of that court upon the claim of Charles Simon, determining the .amount due him under his contract with Franz.
There was no occasion for the Federal court to enter the order if it *265merely intended to give Simon the right to institute an action against the defendant in some other court to enforce his lien. Under the express holding of this court in Greenleaf v. Minneapolis, St. P. & S. Ste. M. R. Co. 30 N. D. 112, 151 N. W. 879, Ann. Cas. 1917D, 908, he had such right even though the action was dismissed, settlement made, and the full amount thereof paid over to the client. He would have had such, right even though the recovery was eventually secured in a second action brought by other attorneys. Gibson v. Chicago, M. & St. P. R. Co. 122 Iowa, 565, 98 N. W. 474. Obviously the Federal court had some object in view in making the order which it did. It, in effect, set aside a certain fund, and provided that the disposition of that fund should be subject to the further order of that court.
Under these circumstances it seems to me that the questions presented in this case ought to have been presented to, and determined by, the Federal court, or at least that that court ought to have been afforded an opportunity to determine it. For “it is a familiar principle that, when a court of competent jurisdiction acquires jurisdiction of the subject-matter of a case, its authority continues, subject only to the appellate authority, until the matter is finally and completely disposed of; and no court of co-ordinate authority is at liberty to interfere with its action.” 7 R. C. L. p. 1067. See also 4 Enc. U. S. Sup. Ct. Rep. 1170; Rock Island Plow Co. v. Western Implement Co. 21 N. D. 608, 132 N. W. 351. This rule has been declared to be of especial importance in its application to Federal and state courts. Farmers Loan & T. Co. v. Lake Street Elev. R. Co. 177 U. S. 51, 61, 44 L. ed. 667, 671, 20 Sup. Ct. Rep. 564. See also, People ex rel. American Surety Co. v. Benham, 71 Misc. 345, 128 N. Y. Supp. 610.
Corpus Juris says':' “Where a state and a Federal court have concurrent jurisdiction over the same parties or privies and the same subject-matter, the tribunal where jurisdiction first attaches retains it exclusively, and will be left to determine the controversy, and to fully perform and exhaust its jurisdiction, and to decide every issue or question properly arising in the case. This jurisdiction continues until the judgment rendered in the first action is satisfied, and extends to proceedings which are ancillary or incidental to the action first brought. Accordingly, where the jurisdiction of a state or Federal court has once attached, it cannot be taken away or arrested by proceedings subse*266quently instituted in the other court; but the usual practice is for the court in which the second action is brought not to dismiss such action, but to suspend proceedings therein until the first action is tried and determined.” 15 C. J. 1161-1163.
There is nothing said in Scharmann v. Union P. R. Co. 144 Minn. 290, 175 N. W. 554 (cited in the majority opinion), which affects the rule stated, or precludes the application thereof in this case. The Scharmann Case did not deal with questions of commity or conflict of jurisdiction between courts of co-ordinate or' concurrent authority. That case was decided on the ground that a certain judgment rendered by a Nebraska court was a nullity for the reason that the court had no jurisdiction over either the person against whom the judgment was rendered, or the res concerning which the judgment purported to adjudicate.
In that case, Scharmann, a locomotive engineer in the employ of the Union Pacific Railway Company in the state of Nebraska, sustained certain injuries. He employed an attorney named Stiles, of Minneapolis, to bring suit against the company, agreeing to allow him for his services one third of the amount recovered either by suit or settlement. Suit was brought in the district court of Hennepin county. In the summer of 1917, Scharmann entered into an agreement with the railway company, “settling the case for $10,000, and dismissing it without the knowledge of plaintiff’s attorney, or. the payment of his fees.” Thereupon in September, 1917, the railway company brought an action in equity in the district court of Buffalo county, Nebraska, against Scharmann, his wife, as conservatrix of his estate, and Stiles, the Minneapolis attorney, as defendants. In its petition the railway company alleged plaintiff’s injury; the appointment of his wife as conservatrix of his estate; that the claim against the railway company had been settled for $10,000; that said Stiles claimed an interest in the amount which might be paid to said Scharmann for such injury by virtue of said contract of employment as attorney to prosecute such claim for damages, and that the amount of said Stiles’s claim was $3,333.34; that said railway company had paid to said conservatrix, the sum of $6,666.67, and brought into court and deposited with the clerk thereof the balance of said $10,000, to abide the decision of the court as to which of said parties was entitled thereto. The railway company asked that all of said par*267ties be required to interplead concerning tbe matters in controversy between them. Summons was served upon Stiles in Minneapolis. He made no appearance in tbe Nebraska- court. Tbe other defendants appeared and answered, alleging that Stiles bad no interest in or claim upon tbe funds involved in tbe settlement. At a regular term of court a default was entered against Stiles, and, after bearing tbe proofs, tbe court made findings that be bad no lien upon or interest in such settlement fund. Thereafter Stiles applied to tbe distirict court of Hennepin county, Minnesota, to reinstate tbe cause and allow him to intervene in order to enforce bis lien, for tbe value of bis services, against tbe railway company. A bearing followed, in which tbe railway company appeared and opposed tbe claim of Stiles, with tbe result that Stiles was awarded judgment against tbe railway company for $3,333.34, with interest and costs. In answering tbe contention that tbe trial court’s decision violated tbe full faith and credit clause of tbe Federal Constitution, tbe Minnesota supreme court said: “If tbe employment was lawful, as determined by tbe trial court, then it constituted a valid Minnesota contract. Tbe action was brought in Minnesota. Tbe court acquired jurisdiction both of tbe parties and tbe cause of action. Tbe services were all rendered in this state. Hnder tbe Minnesota statute, tbe intervener bad a lien upon tbe cause of action for bis services, from tbe time of tbe service of tbe summons in tbe action. Tbe deposit with tbe clerk in no manner affected tbe res against which Stiles sought to impress a lien. Nor did it afford a basis for tbe service of tbe summons outside of tbe state, so as to give tbe Nebraska court jurisdiction.”
It seems to me that neither tbe principle invoked nor tbe reasoning applied in tbe Scharmann Case tends to support tbe contention that tbe Federal court ought not to be permitted, or afforded an opportunity, to determine tbe questions presented in this litigation. If anything, tbe reasoning applied in that case tends to support tbe contrary contention. Tbe action in which Simon rendered services was pending in tbe Federal court. Tbe second action was also pending there. That court bad complete jurisdiction of both actions, of tbe parties, and of tbe cause of action itself. According to tbe Scharmann Case, tbe Federal court bad and retained jurisdiction of tbe res against which tbe lien might be impressed, even without tbe entry of an order such as that entéred by tbe Federal court in this case.
*268In the majority opinion it is said':' “In this case, the plaintiff is not subject alone to principles of equitable consideration, but to conscionable dealing as an officer of this court. In equity, and as an officer of this court, his contract fairly and justly made with his client for the enforcement of his client’s rights should undoubtedly be upheld and enforced for services justly rendered and performed for his client. But in the relation of attorney and client there exists besides, other considerations, the duty of an attorney, as an officer of this court, to so act in the just expedition of his former client’s cause, without seeking any sum due or unconscionable advantage by reason of his retainer based alone upon the plain absolute terms of the contract.” It seems that the majority members invoke and seek to apply the power sometimes asserted, especially by the English courts, that a court of equity may compel its own officers to do justice, “even where the circumstances would give rise to no legal right, and perhaps not even to a right which could be enforced in a court of equity against an ordinary litigant.” See Re Thellussen [1919] 2 K. B. 735, 88 L. J. K. B. N. S. 1210, 35 Times L. R. 732, 63 Sol. Jo. 788, 147 L. T. Jo. 292; Re Condon, 30 L. T. N. S. 773, 43 L. J. Bankr. N. S. 107, 22 Week. Rep. 937, L. R. 9 Ch. 609; Re Carnac, 54 L. T. N. S. 439, L. R. 16 Q. B. Div. 308, 54 L. T. N. S. 439, 34 Week. Rep 421.
AAffiile I am entirely agreed that contingent-fee contracts should be subject to the supervision of the courts, I had always supposed that the proper way to bring this about is by appropriate legislation. See 2 R. C. L. pp. 1036-1038. But, assuming for the sake of the argument that a court may, by the exercise of the power which it has over its own officers, say to an attorney that it will not permit him to collect the compensation agreed upon in a “contract fairly and fully made with his client,” then it seems to me that this furnished an added reason why the matters involved in this case should be determined by the Federal court. The actions and dealings which lie at the foundation of and constitute the basis of the rights of the respective parties were had in connection with litigation pending in that court. It was an action pending in, and appearing upon the calendar of, that court, which it was sought to dismiss. It was as officers of that court that Simon -appeared in the first action, and Jacobson & Murray appeared in the second action. It was in that court that Franz sought to dismiss the -action instituted by Simon *269in order that he might obviate the plea of a former action pending, which had been interposed by the railway company in the second suit. It was that court which conducted the hearing upon the motion to dismiss, and entered the order permitting a dismissal only on the condition that the defendant retain an amount equal to that which Simon was entitled to receive under the terms of his contract, “pending the further order of” that court, “determining the amount due said Charles Simon under his contract with Franz.”
When this case is disposed of on the principles enunciated in the majority opinion, the result will be that the state courts will adjudicate the controversy by applying their judgment as to what is right and conscionable between attorney and client, or between attorneys, in matters which arose, incidental to litigation, in the Federal court, — matters which that court has expressly reserved jurisdiction to determine. It seems to me that the orderly administration of justice and the deference due to the Federal court require that that court be permitted to dispose of the matters involved herein. I therefore believe that this cause should be held in abeyance until the Federal court has rendered its decision or relinquished its jurisdiction.
Bikdzell, J., concurs.