Potter v. Ajax Mining Co.

BASKIN, J.,

DISSENTING :

I can not concur in the conclusions announced in the opinion of the majority of the court in this case.

A settlement of the case having been made by the parties thereto, and an order having been made in the court below dismissing the case, on motion of plaintiff’s attorneys an order .was made setting aside the former order of dismissal and allowing said attorneys to prosecute the action for the purpose of determining the amount of and recovering their attorneys’ fees, to which the defendant duly excepted. For such purpose and for that alone, the judgment in the case was obtained against defendants.

The plaintiff and his attorneys entered into a written agreement, which is set out in the record, in which it was stipulated that said attorneys were to receive as full compensation for their services, in said case, in the courts of Utah, one half of any amount that might be recovered, either by judgment or settlement; that no settlement was to be made without the consent of both parties to said *435agreement, and that said attorneys should advance the necessary costs and witness fees. At the trial the defendants’ counsel requested the court, at the close of the testimony and before the jury had been charged, to instruct the jury that “ said agreement is against public policy, and void, and that there is'no lien for attorneys’ fees thereunder, and your verdict should be for the defendant. ’ ’ The court refused to so instruct the jury, and the defendant duly excepted. This action of the court is assigned as one of the errors upon which defendant relies.

There are two stipulations in said agreement which are against public policy. 1st. The one which provides that no settlement should be made without the consent of both parties thereto; and 2d. The one by which the attorneys agreed to advance the necessary court costs and witness fees.

In regard to the first stipulation, in the case of Boardman & Brown v. Thompson, 25 Iowa, 487, the contract between the attorneys and the client stipulated that the attorneys were to advance all the costs and have for their services a certain per cent of the recovery, and no settlement was to be made without the attorneys’ consent, but if the client did thus settle, the sum claimed in the petition, in a suit to be instituted, was agreed upon as the amount of the recovery, and they were to have the per cent on said sum, agreed' upon for their fees. In pursuance of this agreement, a suit was instituted by the client, Thompson, against the Chicago & Northwestern K. K,. Co., and settlement was made by Thompson, without the consent of the attorneys. The attorneys brought suit on said contract against Thompson and the railroad company, to recover the fee stipulated for in said contract. The supreme court of Iowa, on an appeal in said case, held that the contract was void as against public policy.

*436In the case of Key v. Vatter, 1 Ohio, 132, the contract between the attorney and client provided for the payment of a contingent fee, and that no compromise should be made unless the attorneys joined in it, and the court held the contract was void as against public policy.

The same doctrine is also held- in che following cases : Lewis v. Lewis, 15 Ohio, 715; Weakly v. Hall, 13 Ohio, 167; Elwood v. Wilson, 21 Iowa, 523; North Ohio St. Ry Co. v. Ackley, 49 N. E. Rep., 222.

I have been unable to discover any case or authority which announces a contrary doctrine.

The second stipulation, before quoted, renders the contract champertous and void.

Champerty is not only malum prohibitum, but is malum m se at common law, and renders void all contracts with which it is tainted. Bacus v. Bryon, 4 Mich., 535; Thurston v. Percival, 1 Pick., 415.

In the case of Croco v. Oregon Short Line Ry. Co., decided by this court, and reported in 54 Pac. Rep., 985; 18 Utah, 321, it is held that £‘the common lawwas inforce in this State at the adoption of the constitution, but that it is believed that its force as applied to champertous contracts was ^modified by the passage of Section 3683 of the compiled laws of 1888, which was in force at the date of the contract involved in the case. ’ ’ Said section was also in force at the date of the contract involved in the case at bar.

The contract in the former case provided that the attorneys should pay the advance costs of filing the suit, and the sheriff’s fees for serving the same, and likewise pay the railroad fare of necessary witnesses from the State of Idaho in case of suit.

In the opinion rendered in the case, the court further held that, ££ Under' said Section 3683, it was competent *437for an attorney and client to agree upon the attorney’s compensation; and such compensation may be made contingent upon success, and payable by percentage, or otherwise, out of the proceeds of the litigation, but it was not competent for the attorney, in consideration thereof, to agree to pay the advance fees and costs of the suit thereafter to be commenced.” With this I heartily concur. The defendant’s attorneys asked the trial court to instruct the jury to find for the defendant, because said contract was champertous, but the request was refused. This court sustained the lower court on the ground that other persons not parties to the suit should not be permitted to exonerate themselves from their just obligations because other parties had made a champertous contract regarding the suit, and that the defendant did not set up in its answer the plea of champertous contract.

The case at bar is distinguished from the case of Croco v. Oregon Short Line Ry. Co.

In that case there were no proceedings like in the present one to enforce the champertous contract. A judgment only was sought against the defendant for damages sustained by plaintiff. In the case before us the order setting aside the order of dismissal and judgment was not obtained at the instance of the plaintiff, or for his benefit, but was obtained solely at the instance of the attorneys, for the purpose of enforcing a contract which is cham-pertous and against public policy, a contract which is malum i/n se.

In the affidavit in answer to that of the attorneys, made on the motion to set aside the order dismissing the case, the contract was set out as an exhibit, and it was therefore brought to the attention of the court in a proceeding, the only object of which was the enforcement of a contract both champertous and against public policy. The *438attention of the court was again specifically called to the matter by the instructions asked for' by the defendant. No court should in any way lend its aid to any proceeding to enforce such a contract.

The motion to set aside the order dismissing the case should have been denied, and this court should reverse the judgment and dismiss the case.

I do not wish to be understood as in any degree approving the methods resorted to in settling the case, for they were in my opinion, reprehensible; but that fact does not justify the enforcement of the contract.