(dissenting in part) :
I dissent from holding that the plaintiffs have no right to appeal, but otherwise concur in the opinion, including the striking of the award of attorney’s fees.
I confess that to me it presents a puzzling situation when parties seeking protection of their rights before this court make the contention that they have no right to be here; and even more so, when this court agrees with that contention, but nevertheless proceeds to grant relief, which it has done here to the extent of $6,000. It must, of course, be recognized that the parties may enter into an agreement which states that they will not ask a court to enforce it. The perplexing problem arises if a dispute occurs and one of the parties refuses to abide by that covenant. How then can it be enforced ?
The party relying upon the covenant must say to the other: “You have no right to ask the court for assistance, but I will ask its assistance to enforce against you this covenant which prevents you from seeking its protection.” The logical consequence of the foregoing is this proposition: Under our system of insuring the peaceful and orderly settling of disputes by the processes of law, the only way in the ultimate that any covenant whatsoever, including one not to seek assistance from a court, can be enforced against one unwilling to abide by it is by a court, and the power that stands behind it.
This applies with equal force to the right to an appeal to seek redress from an improper judgment, as it does to having access to the court in the first instance, as set forth in the case of Barnhart v. Civil Service Emp. Ins. Co.1 referred to in the *117main opinion. It is also shown in the case of Bracken v. Dahle.2 The holding is as shown in its headnote 1, that a “Subcontractor stipulating to he bound by provision of main contract with the State, . . . held not to have waived right to apply to courts for redress . . The decision in Latter v. Holsum Bread Co.3 states:
It is almost the universal rule that in the absence of a statute to the contrary, an agreement to arbitrate all future disputes thereafter arising under the contract does not constitute a bar to an action on the contract involving such dispute, on the ground that it seeks to deny to the parties judicial remedies and therefore is contrary to public policy. [Citing a number of authorities.]
It is not to be doubted that after a judgment has been rendered by a court adjudicating the rights of the parties, so that each party knows what his rights and obligations are, they may then agree to abide thereby, and not to take an appeal. This is simply tantamount to settling the lawsuit at that point. If by mutual promises they agree to do so, they should be bound in the same manner as by any other contract; and if a party refused to abide, the matter could be taken to court for enforcement.
The real difficulty is confronted when, before the particular grievance has arisen, and the parties don’t even know what it is, or is going to be, the agreement states they will not seek redress therefrom in court.
The right and some viable means of seeking redress of grievances is essential to a free and orderly society, which the judicial branch of our government and its courts were established to implement. It is provided in Art. I, Sec. 11, of the Utah Constitution:
All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law, which shall be administered without denial or unnecessary delay; and no person shall be barred from prosecvtting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party.
The right to appeal from a judgment which is imposed upon one which is ■ deemed to be oppressive, unjust, or for any reason improper as not in conformity with the law, is also expressly spelled out in our constitutional and statutory law. Art. VIII, Sec. 9, Utah Constitution, provides that:
From all final judgments of the district courts, there shall be a right of appeal to the Supreme Court.
*118It is similar^ declared in Rule 72, U.R.C. P. There are sound reasons why these fundamental rights, which are expressly assured by the law should not he taken away by private contract.
Where parties have agreed to abide by a decision of a court before they even know what it is, or will be, it is certainly within the realm of possibility that a court might render a judgment so totally incongruous to their rights, or the remedy sought, that it would be intolerable to either, or both of them, for that matter. There surely should be some safety valve to correct such a situation and this would be the right of appeal.
The instant case provides a very good illustration of the soundness of the rule advocated in this dissent. Under our law attorney’s fees are never awarded except where provided for by statute or by contract.-4 The main opinion points out that there is no such basis for the award of the $6,000 attorney’s fee against the plaintiff. If there were no right to redress on appeal, we could not correct the judgment and the plaintiff would have to pay that fee. Even though some expedient language is used which may seem to make it appear otherwise, these basic facts cannot be avoided or obscured: notwithstanding the covenant not to take an appeal, the plaintiffs have in fact taken an appeal, this court has considered it, and has granted relief to the extent of $6,000.
The problem under consideration can be brought into sharper focus by an exaggerated supposition. Suppose the trial court, instead of awarding a mere $6,000 attorney’s fee, had extended it another decimal point and made it $60,000, or another decimal point and had made it $600,000, or any further number of decimal points one would care to imagine, and the judgment could not be corrected on appeal. Or suppose the district court had, upon some other unjustified basis, rendered judgment for some amount which was unconscionable or ever so outrageous, and that it refused to correct the error. It seems inescapable to conclude that in the processes of justice there should be some way to correct such a judgment. That is the purpose of the right to appeal and demonstrates the reason why it should not be denied.
For the reasons above set forth: that the covenant not to appeal is inimical to the spirit and purpose of our system of justice and is contrary to clearly expressed fundamental law, it is my opinion that this court should refuse to enforce it as being as against public policy, and then award the appropriate relief by striking the $6,000 attorney’s fee, and otherwise affirming the judgment, as does the main opinion. This would avoid the paradox involved in say*119ing that the covenant not to appeal is valid and binding, and in the same decision granting relief on appeal.
(All emphasis mine.)
ELLETT, J., concurs in the opinion of CROCKETT, J.. Footnote 4 of main opinion.
. Footnote 4 of main opinion.
. See cases cited in footnotes 6 and 7 of main opinion.