In re Evans
- Reporters:
- , ,
- Before:
- Straup
Lead Opinion
In May, 1900, an information or accusation was filed in this court to disbar David Evans and L. R. Rogers, members of tbe bar of this court, wbo theretofore were copart-ners in the practice of the law at Ogden, Utah. The matter was referred to a master or referee, who took the testimony and reported findings which exonerated Evans and Rogers of the charge. After a, submission of the cause on the findings and the record, the court made additional findings, upon which, and the conclusions stated upon them, Evans and Rogers were adjudged guilty and deprived of the-right to practice in any of the courts of this state until they paid into court the sum of $1793 for the use and benefit of one Mrs. Nellie Nelson and her minor children, the costs of the proceedings, $175 referee’s fee, and a stenographer’s fee of fifty-four dollars. It was further adjudged that, upon their failure to pay such sums within sixty days, they be permanently disbarred and their names stricken from *289tbe roll of attorneys. Tbe case, In re Evans & Rogers, is reported in 22 Utah, 366, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794, where tbe findings of tbe referee, tbe additional findings of tbe court, and its opinion and tbe judgment are set forth. TJpon tbe filing of the decision Evans and Rogers complied with tbe order by paying the moneys as directed, and there tbe matter was at rest until in April, 1912, when they filed a verified petition in this court for a rehearing and a review and re-examination of tbe record and tbe judgment. Tbe Attorney-General, and counsel there-toforb appointed; in tbe former proceedings as friends of tbe court and to conduct tbe prosecution, by written stipulation, consented that tbe petition, if tbe court were so advised, be entertained. Such counsel were thereupon reappointed by us as friends of tbe court. TJpon their request that they be relieved from further participation in tbe matter, we appointed other counsel for such purpose, who consented to act, and who have rendered us much assistance.
Tbe petition sets forth tbe former proceedings, tbe findings of the referee, tbe additional findings of tbe court, portions of its opinion, and tbe judgment. It is further averred that there are manifest errors apparent on tbe face of tbe record and judgment, in tbe particulars that tbe additional findings made by tbe court are inconsistent with each other; that material portions of such findings, as appear on tbe face of them, are based, not on tbe evidence, but upon misapplied legal fictions, and were made by a resort to methods qt variance with tbe forms and practice of tbe court and contrary to law, and that they do not support tbe judgment; that upon tbe face of tbe findings the petitioners were not guilty of tbe charge; that tbe court adjudged them guilty of matters not within tbe issues, and upon which they bad not bad their day in court; and that tbe petitioners, since tbe rendition of tbe judgment, removed to tbe State of California, where Evans resumed tbe practice of tbe law, and where Rogers intends to do so, and that tbe judgment and tbe opinion, as they now stand, impeach and *290prejudice, and will continue to impeach and prejudice,-their good name and their social and professional standing, and hinder and embarrass, and will continue to hinder and embarrass, them in obtaining business and employment, especially in California and elsewhere, where the circumstances of the controversy are not known as they are in IJtah. For these reasons the petitioners pray for a rehearing and reexamination of the record, and for an annulment or a modification of the judgment.
At the threshold counsel amici curiae advise us that, in their opinion, we are without jurisdiction or power to5 now review the record, or to set aside or modify the judgment; for, while the proceedings resulting in the judgment complained of were special and summary, nevertheless, the judgment is res adjudicada of the whole issue, and cannot be inquired into, except on a motion for new trial or rehearing as by law provided for rehearing of causes, or for legal reasons for maintaining a bill in the nature of a review which, as they advise us, are not sufficiently made to appear. Our attention, therefore, is called to the statute permitting the filing of petitions for -a, rehearing of causes determined by us on appeal, our rules requiring such a petition to be filed within twenty days after the filing of the opinion, and to the failure of the petitioners thereunder to invoke the action of the court, as they, within such time, might have done, and upon these considerations are we advised that they should not now be heard to complain and be permitted to invoke such action more than eleven years after the rendition of the judgment. We are further advised that if the petition be regarded as in the nature of a bill of review, and as designed to invoke in the broadest and most comprehensive manner all the powers possessed by us to correct error, nevertheless, since it is not grounded on newly discovered matter arising since the judgment, nor upon fraud, but on error, not of law appearing on the face of the record, but of fact and alleged errors resulting from a misconception or misapplication of the evidence, or conclusions deduced therefrom, the petition cannot be entertained on that theory.
*291On the other hand, it is contended by counsel for petitioners that the petition invokes the summary jurisdiction of the court, and not its original or appellate jurisdiction in respect of either its common law or equity jurisdiction, and therefore the general rules of criminal and civil procedure prescribed by the Code do not apply, and that such summary jurisdiction over its officers is inherent in the court and exists of necessity; that the exercise of such a jurisdiction is wholly different from that of the ordinary common law and equity jurisdiction, and, in the absence of direct legislative enactments or constitutional provisions, such summary jurisdiction may be exercised and such procedure adopted and such remedies applied as, of necessity, may be required to protect the integrity and dignity of the court and its officers in respect of matters wholly between the court and them; and that within such limitations the power of the court is complete, continuing, and plenary. Counsel for petitioners further contend that, though the petition be regarded as in the nature of a, bill of review, yet, as alleged in the petition, there are manifest errors of law appearing on the face of the record for which not only such a bill will lie, but which also’ render the judgment a nullity, and subject to both direct and collateral attack.
Before passing to a consideration of these divergent views, it may be well first to notice, as have counsel, the nature and substance of the accusation and the admitted transactions as disclosed by the record out of which it arose, the findings of the referee, and the additional findings of the court upon which the judgment was based. In 1892 Charles A. Nelson, then a resident of Nevada, while transporting and accompanying live stock on a train of the Southern Pacific Bail-way Company, was, near Truckee, Cal., knocked off the train in a snowshed and killed. He left surviving him a widow and two minor children, also then residing in Nevada. Shortly thereafter they moved to Oakland, Cal. One of the deceased’s brothers, Alfred H. Nelson, was a lawyer practicing his рrofession at Ogden, Utah. Another brother, Thomas Nelson, resided in Nevada. The widow commu-
*292ideated with Alfred, and employed him to inquire into the circumstances attendant upon tbe accident, and authorized bim to employ such other counsel, and on such terms, as he thought proper to protect her interests, and t‘o prosecute an action against the railway company for damages. Alfred consulted the petitioners, Evans & Rogers, a firm of lawyers of long experience and in active practice at Ogden, especially in the trial of causes. Upon such consultation, and upon the conclusion reached that a meritorious cause of action existed against the company and in favor of the widow and minor children, Alfred, in virtue of his authority from the widow, employed Evans & Rogers to assist him in the prosecution of such an action. The terms of the employment, as to attorney’s fees, were a contingent fee of fifty per cent, of whatever amount might be recovered in the action, of which Evans & Rogers were to receive two-thirds -and Alfred one-third; but, as Alfred was not an experienced lawyer in the trial of causes, it was agreed that his share of the labor in the litigation should mainly be to procure the attendance of witnesses, some of whom were beyond the jurisdiction of the court, or to obtain their depositions. It was also decided to commence the suit in the Utah courts at Ogden. As Mrs. Nelson resided in Oakland, and for convenience in the conduct of the business, Alfred was appointed administrator of the estate of the deceased by the probate court at Ogden. Thereafter the suit, in the name of the administrator against the railway company, was commenced in the district court at Ogden. The litigation which ensued was long and laborious. The case was tried five times in the district court, and was heard three times on appeal in the Supreme Court. Finally a judgment was recovered against the company in the sum of $10,000, which, when paid, with interest, amounted to $10,760. In December, 1893, and before the first trial of the cause, Alfred Nelson left Utah, and did not thereafter assist in the litigation. Before leaving, he desired to assign his interest in the contingent fee to his brother, Thomas Nelson, partly to secure Thomas for advances or loans of money which he had made to Alfred, and partly for the benefit of *293Alfred, wbo was financially involved, and over whose interеst Tbomas was fearful Alfred’s creditors might make trouble. Such an assignment was made and submitted to Evans & Rogers in the presence of both Alfred and Thomas. Evans & Rogers at first declined to recognize Thomas in the transaction, mainly for the stated’ reason that he was not a lawyer, and because of the understanding that Alfred, who was a lawyer, was expected, as such, to render some assistance in the case. Upon the solicitation of both Alfred and Thomas that Thomas be in some manner recognized, the conclusion was finally reached to do so; but, instead of the proposed assignment, it was thought advisable to make a direct contract between Evans & Rogers and Thomas Nelson. Thereupon a written contract, which is referred to as “Exhibit A,” was entered into between Evans & Rogers and Thomas Nelson, ‘as follows:
“Ogden, Utah, Dee. 2, 1893. We, the undersigned, agree to give Thomas Nelson one-third of one-half of any amounts which may be collected, whether on compromise or otherwise, in the case of Alfred H. Nelson, as administrator of the estate of Charles A. Nelson, deceased, v. Southern P‘aeific Ry. Co., in consideration of said Thomas Nelson furnishing witnesses necessary to prosecute said case. Evans & Rogers.”
The dispute between Evans & Rogers and Thomas Nelson, which subsequently, and after the judgment against the railway company had been paid, arose over and grew out of this contract, is what gave rise to the proceedings of disbarment resulting in the judgment of which the petitioners now complain. When the judgment against the railway company was paid, one-half thereof, or $5380, was distributed by the probate court, and was paid to the widow and her minor children. The other half was retained by Evans & Rogers. Thomas Nelson, who was a witness in the case, was paid his witness’ fees and all his expenses and disbursements. In addition to that, he thereafter, and in accordance with the terms of Exhibit A, also demanded of Evans & Rogers one-third of one-half of the amount recovered. They de-*294dined, to pay him any part thereof, for the stated reason that he had not performed his part of the contract, ‘and had not procured the attendance of witnesses, or obtained their depositions, as by his contract he had agreed; and that npon his failure and refusal so to do, on their demand, they themselves, in order to procure the attendance of necessary witnesses and to take necessary depositions, advanced such costs and expenses at the request of the widow, and upon an agreement with her that she should repay them, regardless of the outcome of the litigation, all of which were subsequently repaid to them by her. Thomas Nelson, of course, claimed that he had performed, and therefore demanded one-third of one-half of the recovery. Upon the refusal of Evans & Rogers to pay it, Thomas Nelson sought an attorney who had represented other railway companies in numerous suits prosecuted by Evans & Rogers and defended by him, and between whom and Evans & Rogers a strained and unfriendly relation then existed growing out of such litigations. Thomas Nelson submitted to him a copy of the contract, Exhibit A, and requested him to bring suit against Evans & Rogers for a recovery. The attorney advised him that, in his opinion, the contract was champertous, and for that reason no recovery could be had. Thomas nevertheless insisted that the suit be commenced, and upon such direction one was commenced by him against Evans & Rogers. The action was bottomed on the contract, Exhibit A, Nelson’s compliance with and Evans & Rogers’ breach of it. But in the complaint it was also alleged, by way of inducement, as testified to in the disbarment proceedings by Nelson’s attorney, that Evans & Rogers had entered into an agreement with Alfred H. Nelson, the administrator, by the terms of which the administrator had agreed to pay and they to accept one-half of whatever sum might be recovered against the railway company, in consideration of services to be rendered by them in the litigation and their paying and discharging “all taxable costs incurred and the costs incident to procuring the attendance of witnesses and all other costs that might be incurred in the prosecution of the causeand then it was alleged that *295thereafter Evans & Rogers entered into a contract with him (Thomas Nelson), as evidenced by Exhibit A; that he had performed all the conditions thereof on his part to be performed ; and that Evans & Rogers wrongfully refused, on his demand, to pay him one-third of one-half of the amount recovered.
When Thomas Nelson’s suit was commenced, Evans and Rogers had dissolved partnership. TTpon the service of summons on Evans he handed the copy to a Mr. Horn, an attorney at Ogden, and who had theretofore been in the employ of Evans & Rogers covering a portion of the time of the litigation against the railway company, and requested him to “look after it.” Later Evans informed Rogers what he had done in that regard. Horn, without consulting either Evans or Rogers, interposed in their behalf a general demurrer to the complaint for want of facts. In no other way was the question of (champerty or illegality of the contract, as alleged in the complaint, pleaded or raised, except, on the hearing of the demurrer in the absence of Evans and Rogers, Horn, in support of it, urged that the complaint alleged a ehampertous contract, and’ for that reason no recovery could be had. Nelson’s attorney did not seriously dispute the legal conclusion. .5, The demurrer was sustained, and the action dismissed. Rogers, believing that the demurrer was a “time server,” as also did Evans, and learning the reason for which the demurrer had been sustained, sought Nelson’s attorney, stated to him that he did not desire to make any defense of champerty, offered to consent that the demurrer be withdrawn, the ease reinstated, and asked that he be permitted to answer on the merits, and later proposed a written stipulation to that effect. As testified to by Nelson himself, the offer was communicated to him, but was declined on his attorney’s advice that “it would not amount to anything,” as the lower court would likely take the same view of the matter as before, and would not permit a recovery because of the character of the contract; and therefore he (Nelson) “proceeded with it to the Supreme Court to show up” Evans and Rogers and “to place them on record.” Evans, learn-*296mg of tbe offer, also expressed a desire to join in tbe stipulation, but was told by Rogers tbat it would not be accepted. A speedy appeal by Nelson was prosecuted to tbe Supreme Court. His counsel, in bis brief, after referring to tbe allegations of the complaint and to tbe demurrer, submitted tbe case with tbe observation:
“Tbe demurrer is general. It is submitted tbat tbe complaint states a cause of action, unless there is an illegality in tbe contract itself. There is no presumption tbat such is tbe case, and there is no presumption, certainly, tbat tbe defendants rely upon such defense.” Horn, at Rogers’ request, withdrew bis appearance for him in tbe Supreme Court, but after be bad filed a brief on behalf of both Evans and Rogers, in which all tbat be said was tbat tbe complainr “does not state facts sufficient to constitute a cause of action,” and cited cases, including tbe case of Croco v. O. S. L. R. Co., 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285, relating to champertous and illegal contracts. Tbе judgment of tbe court below was affirmed. Tbe case is reported in Nelson v. Evans & Rogers, 21 Utah, 202, 60 Pac. 557.
Tbe agreement between Alfred H. Nelson and Evans & Rogers, as alleged in tbat complaint, is champertous and illegal. (Croco v. O. S. L. R. Co., 18 Utah, 321, 54 Pac. 985, *29744 L. R. A. 285.) The agreement between Thomas Nelson and Evans & Rogers, Exhibit A, is not champertons. Potter v. Ajax Min. Co., 19 Utah, 421, 57 Pac. 270; s. c., 22 Utah, 273, 61 Pac. 999, where it was held by this court that contracts for contingent fees, based on a moiety of the amount of recovery, are lawful; and that an attorney may lend or advance to his client moneys for necessary costs and expenses to carry on the litigation, when there is an express or implied understanding or agreement for the repayment of such moneys, and no agreement of indemnity against the client’s liability to pay costs. And it was the contract, Exhibit A, which defined, and under it Thomas Nelson in fact claimed, his primary right and the corresponding primary duties of Evans & Rogers, and the delict or omission which violated them, and under which he in fact claimed he had performed, and with respect to which he in fact claimed the breach arose. Thus Thomas Nelson could have stated a good cause of action, founded upon his contract and a breach thereof, which would have been free of the charge of champerty or illegality; for let it be noticed that his complaint was held had on the sole ground that it contained allegations showing terms of a contract whereby the defendants, Evans & Rogers, had agreed to pay and discharge all costs and expenses of the litigation referred to, terms of the alleged Alfred H. Nelson contract, but not of the Thomas Nelson contract. Nevertheless, Thomas Nelson, by way of inducement, first alleged that Evans & Rogers hаd entered into an alleged contract with the administrator, Alfred H. Nelson, which, •as alleged, was impregnated: with champerty, and then alleged that they thereafter entered into a contract with him, which within itself was not so tainted, and thereby unnec-cessarily, and either inadvertently or purposely, imported, something odious into his complaint, which the court held defeated a recovery, and drove him out of court.
After the remittitur was sent down, Thomas Nelson’s attorney, upon an affidavit of Nelson, presented to and filed in this court a written •accusation or information to disbar Evans and Rogers. Thomas Nelson himself testified that *298be made tbe affidavit and caused tbe disbarment proceedings to be instituted “out of revenge,” and, as found by tbe referee, to force Evans & Rogers to pay bim tbe money wbicb he claimed was due bim, believing, as be testified, that they would do so rather than “face tbe charge.” Tbe original information filed in tbe cause is lost. Upon an application on behalf of the petitioners for a substitution, supported by a verified petition and affidavits of those who averred and showed personal knowledge of tbe contents of the original information, and who, upon such knowledge, made direct and positive averments as to tbe substance and contents thereof, and especially as to all of tbe specifications of tbe charge therein contained, and upon service of notice and’ copies of such petition, affidavits, and proposed substituted information upon counsel who prepared, presented, and filed tbe original information, and upon counsel amici curiae, and tbe averments of such petition and affidavits and contents of such proposed substitution with respect to tbe specifications of tbe charge not having been in any particular disputed or controverted, and no objection having been made, and no other or different action requested, a substitution of tbe lost information was ordered. As shown by tbe substituted information, tbe specifications of tbe charge are that Evans & Rogers bad (1) entered into a champertous agreement with tbe administrator-, Alfred H. Nelson, in tbe suit against tbe railway company, by tbe terms of wbicb they “undertook and agreed to prosecute said cause against tbe railway company to final judgment, and also to pay and discharge all tbe taxable costs incurred, and also tbe сosts incident to procuring tbe attendance of witnesses, and all other-costs that might be incurred in tbe prosecution of tbe cause,” wbicb terms of such contract, in such particular and as so-alleged in tbe information, are tbe same as were alleged in tbe Thomas Nelson complaint, and (2) bad afterwards, and on tbe 2d day of December, 1893, in connection with tbe foregoing contract, entered into another champertous contract, Exhibit A, with Thomas Nelson, heretofore, fully set forth, to wbicb information were -attached and made a part *299thereof, and as exhibits, a copy of the abstract of the record on the appeal in the Thomas Nelson Oase, a copy of the brief, signed by Horn as attorney for Evans and Rogers, and a copy of the decision of the court on such appeal, true copies ‘of which abstract and brief, as is averred in the substituted1 information and affidavits, are now on file in this court and contained in volume 62 of Abstracts and Briefs, file no 1,191 of the records and files of this court, and the official decision itself contained in 21 Utah, 202, 60 Pac. 557. And upon the whole record, including the briefs as filed in the original proceedings, a full and complete stenographic report of all the proceedings had and evidence taken before the referee, and as reported by him, which briefs and transcript of such proceedings and evidence are preserved and now on file, the findings of the referee, and the additional findings of the court, as set forth in 22 Utah, 368, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794, it also clearly appears that the original information contained no specification of charges other than or different from those set forth and contained in the substituted information.
*301
We have already referred to the substance of the information. With respect to the alleged contract between Alfred PL Nelson and Evans & Rogers, the referee, in finding No.. 5 (22 Utah, 369, 62 Pac. 914, 53 L. R. A. 952, S3 Am. St. Rep. 794), found:
24 “That the said Alfred H. Nelson employed Evans 6 Rogers to prosecute said claim against said railway company, and the said Evans & Rogers and Alfred H. Nelson agreed to prosecute ‘such action’ for a contingent fee of one-half of the amount recovered;” and in finding1 No. 6: “That Evans & Rogers and Alfred H. Nelson entered into a contract, by the terms of which Evans & Rogers were to receive and retain two-thirds of the one-half of the amount recovered against the Southern Pacific Railway Company, and thе said Alfred H. Nelson was to receive one-third of the one-half of the amount recovered of said company, which amount Evans & Rogers agreed to pay him for his services in said ease, including the production of witnesses for the prosecution.”
It is thus seen that the referee, in finding the terms of the Alfred H. Nelson contract, did not find that the petitioners had agreed to pay or discharge any of the costs in the suit against the railway company, and as the terms of that contract were alleged in the information or in the Thomas Nelson complaint. These findings the court did not disapprove, but asserted were supported by the evidence. (22 Utah, 372, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794.) At the trial before the referee it was shown that that contract with other property was unavoidably destroyed by fire; but Alfred H. Nelson, for the prosecution, gave testimony with respect to its terms, as also did Evans and Rogers. All testified in that respect as found by the referee, and not otherwise; nor was there any evidence to show that Evans and Rogers, or either of them, agreed with Alfred H. Nelson, or with anyone, to pay or discharge the costs or expenses of any kind, as alleged in the Thomas Nelson complaint or *304in tbe information. Tbat is admitted. Nevertheless, the court, after the submission of the cause, by its additional finding No. 8 (22 Utah, 374, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794), found that an agreement was made between Alfred H. Nelson and Evans & Rogers, by the terms of which they had agreed to pay and discharge all costs, as alleged in the Thomas Nelson complaint ;• but, as manifestly appears on the face of such additional finding, such finding of fact was not based on the evidence, but on a legal fiction, and upon an assumption of an admission by failure of denial.
The court, after finding that the abstract of the record on appeal in the Thomas Nelson Case, containing, among other things, the complaint in that action, was attached to and made a part of the information, then, by additional finding No. 8, found that “the complaint (in the Thomas Nelson Case) also alleged that in the contract with Alfred H. Nelson ‘Evans & Rogers undertook and agreed to prosecute said cause against the railway company to final judgment, and also to pay and discharge all the .taxable costs incurred, and also the costs incident to procuring the attendance of witnesses and all other costs that might be incurred in the prosecution of the cause.’ These allegations were admitted by the demurrer to said complaint, and are not denied by respondents in their answer to the information or contradicted by the evidence.”
It is thus seen that the court, by sueh additional finding, made a finding with respect to the terms of the alleged Alfred H. Nelson contract which contradicted the findings of the referee on that subject, which referee’s findings the court declared were “supported by the evidence;” and, as manifestly appears on the face of it, the court made such additional finding, not on the evidence, but, at least partly, on the legal fiction that a demurrant, for the purposes of the demurrer, admits all material and properly pleaded allegations of the pleading demurred to, and extended and applied the fiction, not only to material and properly pleaded allegations, but also to immaterial and unnecessary allegations, *305and further applied and extended it, not only for the purposes of the demurrer in testing the legal sufficiency of the complaint demurred to, but also as a rule of evidence and as conclusive admissions of fact in a subsequent and wholly independent cause or proceeding involving different issues and between different parties, and so extended and applied it as to contradict the evidence and to displace the truth as indisputably and confessedly shown by the evidence. That the making of such an application of the fiction was a misconception and misapplication of it, and making it the basis of a finding was at variance with the forms and practice of the court and contrary to fundamental principles, cannot be doubted. A finding which, on its face, was made in that manner no more supports a judgment founded upon it than would a verdict of a jury which manifestly shows it was made up and rendered by some process or method at variance with the forms and practice of the court and contrary to law. Furthermore, such additional finding No. 8, as appears on the face of the findings themselves, is not only at variance with the findings of the referee, but is also inconsistent with the third and fifth additional findings of the court (22 Utah, 373, 62 Pac. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794), which are to the effect that a portion of the •costs were advanced by Evans & Rogers not under an agreement with Alfred EL Nelson, by the terms of which the petitioners had agreed to pay and discharge the costs, but under an agreement with the widow, by the terms of which she had agreed to repay the same to them, an agreement under the authority of Potter v. Ajax Min. Co., not champertous, and that she repaid them all the moneys so advanced, and “paid all of the expenses of the litigation, as far as Evans & Eogers are concerned.”
*306
Since the terms of the Thomas Nelson contract, as alleged, were expressly admitted, if. therefore, it was thought that the terms, as alleged, of the Alfred IT. Nelson contract were also admitted, the only other issue of fact presented by the ‘information, it is difficult to perceive on what theory a reference was made of the case to take testimony and report findings. But on the record there is a most conclusive answer to the suggestion or contention of any such an admis■sion. The whole case, as indisputably shown by the reсord, was tried and submitted on the theory that all of the allegations of the information or accusation were put in issue. At the threshold of the trial before the referee, and upon •observations of counsel for the prosecution as to the issues, *308counsel for tbe accused stated: “Tbe issue arises from your charges, and it devolves upon you to produce your proof, if you bave any, to sustain them.” This view was accepted by tbe referee and by counsel for the prosecution, and’ tbe latter thereupon put in evidence a copy of tbe abstract of record, brief of counsel, and tbe opinion of tbe court as attached to the information, made proof of and put in evidence the contract, Exhibit A, and called witnesses, as heretofore shown, to give testimony, as did also Evans and’ Rogers, with respect to the terms of the alleged Alfred H. Nelson contract. Not only did counsel and the petitioners so treat and regard the alleged terms of the Alfred H. Nelson contract as in issue, but so also did the referee and the court, for both made findings with respect to them; the referee on the evidence; the court on legal fictions. Tbe referee found as to tbe terms of that contract, and found them to be, not as alleged in tbe Thomas Nelson complaint, nor in the information, but as set forth ini his findings Nos. 5 and 6, heretofore referred to. Those findings were approved by tbe court, and tbey in no uncertain language were most solemnly declared by tbe court to be “within tbe issues” and “supported by tbe evidence.” (22 Utah, 372, 62 Pac. 915, 53 L. R. A. 952, 83 Am. St. Rep. 794.) And so they were. Of that there can be no doubt. Hence such additional finding No. 8 by tbe court, which manifestly, on tbe face of it, was not based on the evidence, but upon a misapplied legal fiction, and upon an erroneous assumption of no denial, manifestly, on the record, contrary to the pleadings and the theory upon which tbe case was tried and submitted, cannot support a judgment founded upon it. And on that finding and no other, rests tbe conclusion that Evans & Rogers bad agreed with Alfred H. Nelson, or with anyone, to pay and discharge the costs and expenses of the suit against the railway company, and as alleged in the information or in the Thomas Nelson complaint.
*309
It therefore is apparent that as to such a controversy tbe widow and children were not concerned. No one “claimed that tbe amount of tbe contingent attorney’s fee was unrea-sonablé or excessive, or that tbe services rendered in tbe protracted litigation by tbe petitioners were not reasonably worth such sum; nor were their relations to or dealings with tbe widow and children in any other particular complained of or questioned. Tbe court, nevertheless, adjudged tbe petitioners guilty of misconduct in not faithfully safeguarding tbe interests of tbe widow and children, in violating duties and obligations, and in wrongfully withholding moneys be*311longing, to them — “put into their own pockets” $1793 be-’ longing to them — and ordered and adjudged that they be deprived of the right to practice until they paid such moneys into court. An attorney should not so solemnly and summarily be pronounced guilty of such gross disloyalty and infidelity to his client, conduct constituting a criminal offense (Rev. Stat. 1898, sec. 136), without a charge or an issue and an opportunity to be heard upon it. The court made such observations and reached such conclusion on the theory that, since, as found by the court, neither Alfred H. nor Thomas Nelson were entitled to any part of the contingent fee, and to no part of the amount recovered against the railway company, and since, as also declared by the court, two-thirds of fifty per cent, of the amount recovered was all that the petitioners were entitled to, either under their contract or on a quantum memit, not only us between them and Thomas Nelson, had he performed, but also as between them and the widow and children, therefore were the petitioners ordered to pay the other one-third of such contingent fee to them. Surely the petitioners, as between them and the widow and children, were entitled to their day in court upon the question as to their right to compensation, and the amount thereof, either, under their contract of employment us found by the referee, of a contingent attorney’s fee of fifty per cent., or on a quantum meruit for the reasonable value of the services rendered by them. But the court summarily deprived them of such a hearing, and without pleadings or an issue, or evidence, or an opportunity to be heard, judicially considered and determined the rights of the petitioners in such particular, when clearly no such question was juridically presented and could not judicially be considered or decided. That such adjudication, on the face of the record, is wholly unsupported by the information or accusation and clearly without the issues, and hence the judgment founded upon it a nullity and subject to attack whenever and wherever brought in question, cannot be gainsaid.
In this connection it may be here noticed, and as found by the referee (finding No. 9, 22 Utah, 370, 62 Pac. 913, *31253 L. R A. 952, 83 Am. St. Rep. 794), which finding, also, the court approved, that Thomas Nelson procured the attendance of but two witnesses other than himself “at one of the trials of said cause,” the cause against the railway company. And it is shown that when the first trial resulted in plaintiff’s defeat Thomas Nelson lost hope and failed and refused to procure the attendance of witnesses at the subsequent trials, and especially failed and refused to aid the widow to come from California to Utah to be a witness and in attendance upon the trial. Hence Evans & Rogers, at her request, and upon representations of her inability to defray her expenses, and upon an agreement that she should repay them, advanced her moneys at different times for that purpose, and also to procure the attendance of other necessary witnesses, of whom some were beyond the jurisdiction of the court, and to take depositions. Whatever different opinions may be entertained as to the propriety of an attorney so assisting his client, it certainly ought not to be said that the former was unfaithful to or derelict in not protecting the latter. And upon the record it is very evident that, had not the petitioners so assisted the widow, and had they not so per-serveringly maintained and upheld the cause in her behalf, notwithstanding defeat upon defeat, neither she nor the children would have recovered anything.
Erom these views it necessarily follows that the judgment ought to be held for naught and vacated. The further question arises as to what further order or judgment in the premises should now be made. As has been seen, the Alfred H. Nelson contract, as alleged in the Thomas Nelson complaint and in the information, with respect to the petitioners’ undertaking to themselves pay and discharge the costs in the suit against the railway company, is champer-tous and illegal; but confessedly there is no evidence to show the making of such a contract. The finding of the court on the legal fiction and the erroneous assumption of an admission by failure of denial — the only things pointed to in support of the making of such a contract — do not, as heretofore shown, support the conclusion that such a contract was made. The charge, then, with respect to the making of that contract, as to the petitioners’ agreement to pay and discharge such costs, the gravamen of the charged offense of champerty, and as alleged in the Thomas Nelson complaint and in the information, is wholly unsupported.
Thus, to recapitulate, the case as to.the charged offense of champerty is this: Thomas Nelson, in his suit against the petitioners, erroneously or falsely alleged terms of the Alfred H. Nelson contract with respect to their undertaking to themselves pay and discharge the costs in the suit against the railway company, a champertous contract, and then alleged that, in connection therewith, they made a contract with him, which is not itself champertous. By reason of such erroneous or false allegations they demurred him out of court. Then, instead of declaring on his contract as it in fact existed, or on a quantum meruit, he preferred charges of disbarment against the petitioners, alleging that they had *317made a champertous contract with Alfred H. Nelson, as in his (Thomas Nelson’s) complaint alleged, and that, in connection therewith, they also had made a champertous contract with him. The evidence wholly failed to show the making of such a contract with Alfred H. Nelson; and the findings of the referee, based on the evidence, showed that no such contract was in fact made. And hence both the ■evidence and the findings showed the allegations of the information and of the Thomas Nelson complaint, in such ■particular, to be untrue. The court nevertheless accepted them as true upon a. misapplied legal fiction and an erroneous assumption of an admission, and thereupon found the petitioners guilty, and then pronounced a judgment against them on matters wholly without the issues.
These questions have all been fully presented and argued and submitted on this application. We do not see anything that can be presented in addition to what has already been presented on a further review of or rehearing on the record. It therefore is ordered and adjudged that the judgment heretofore made and entered in the case of In re Evans & Rogers, 22 Utah, 366, 62 Pac. 913, 53 L. R A. 952, 83 Am. St. Rep. 794, be, and the same hereby is, annulled and vacated; that the charge or accusation preferred against them is not supported by any evidence; and that they, on the record, ought to be, and hereby are, exonerated and discharged. Such is the order.
Concurrence Opinion
I concur. Rev. Stat. 1898, sec. 120, so far as material, provides:
“An attorney and counselor may be removed or suspended by the Supreme Court . . . for any of the following causes: .. . . . (1) His conviction of felony or misdemeanor, involving moral turpitude, in which case the record of conviction is conclusive evidence. (2) ■ . . . Any violation of the oath taken by him or of his duties as such attorney and counselor. . . . (5) For any other act to which such a consequence is by law attached.” Section 122
*318reads: “Proceedings to remove or suspend an attorney and counselor under tbe first subdivision of section 120 must be taken by the court on the receipt of a certified copy of the conviction. Proceedings in other cases may be taken by the court for matters within its knowledge, or may be taken upon the information of another.” Section 123: “If the-proceedings are upon the information of anоther, the accusation must be in writing.” Section 124: “The accusation must state the matters charged, and be verified by the oath of some person to the effect that the charges therein contained are true.” Section 130: “If the accused . deny the matters charged, the court must, at such time as it may appoint, proceed to try the accusation.” (Italics mine.)
In the respondents’ brief it was said: “The sole question for determination by the court is as to whether the information filed . . . states such a case as to lead the court to the conclusion that the respondents are unfit to practice at this bar. . . . The charge is that respondents ‘entered into an unlawful, champertous contract with Alfred H. Nelson, deceased.’ And that ‘they also entered into an unlawful and champertous contract with one Thomas Nelson. . . .’ In other words, upon this hearing the sole question for consideration is as to whether, if an attorney enters into a champertous contract, that is a sufficient ground for disbarment.” (Italics mine.)
In neither of the briefs mentioned is there any statement, suggestion, or word to the effect that Evans and Rogers, or either of them, had in their possession a dollar that belonged the estate of Charles A. Nelson, deceased, or to any of the beneficiaries thereof. Nor is there a suggestion that they, or either of them, was in any respect unfaithful to, or unmindful of, their client’s interest in the case of Nelson v. Southern Pacific Railway Company, to which the contract in question referred, or that they were derelict in their duty to their clients in any other case or cases. The only question discussed in the briefs was the question of whether the contracts mentioned were champertous. Furthermore, the findings of fact proposed and submitted by the relator in the disbarment proceedings to the referee as the *320findings in the ease are among the papers on file herein, and they contain no statement, nor even a suggestion, from which, it can be inferred that there was any claim made at the-hearing, or at any other time, that Evans and Rogers, or either of them, was withholding or that they or either of them had in their possession, any fund or money belonging to the Charles A. Nelson estate. Those proposed findings-refer only to facts having some bearing upon the question of champerty. Moreover, I have read the record containing a transcript of the evidence submitted on the hearing before the referee, and it shows that no claim was made, nor was it even. suggested by the relator, the Attorney-Ceneral, or by counsel who were appointed as friends of the court at the hearing on the merits, that there was any money due from Evans and Rogers or either of them, or that they had any money or fund in their possession or under their control belonging to the Charles A. Nelson estate; nor was any evidence offered for the purpose of establishing any such-fact. On the contrary, the record, as made before the referee, shows that the Attorney-General, who examined the witnesses called by the state аnd cross-examined the witnesses who testified for respondents (petitioners herein), endeavored to show that Thomas Nelson complied in every particular with the terms of the contract in question; and that he (not the widow and children of Charles A. Nelson) was in effect defrauded out of what was due him, because Evans & Rogers availed themselves of the alleged cham-pertous character of the contract as a defense in his suit against them.
Thomas Nelson, who made and subscribed to the affidavit upon which the disbarment proceedings were instituted, was called as a witness by the state, and testified in part as follows :
“Q. Where did you get the affidavit from; who drew it up for you? A. Well, I think Mr. Williams drew the main part of it. . . . I sent him the facts first, and then he put it in form for me and sent it back to me. . ■. . Q. You sent him the facts to draw the affidavits from and *321paid him seventy-five dollars; that is, to prepare the papers necessary to institute these proceedings ? A. Yes, sir. . . . I wanted to place Mr. Evans and Rogers on record in the Supreme Court in this matter, and I told him that. Q. I understand you to say that you wanted to put Evans & Rogers on record in the Supreme Court? A. If they didn’t settle with me. Q. What you were anxious for was to collect under your contract ? A. I wanted my money. . . . I brought proceedings against them with the hope of getting my money. . . . Q. Mr. Nelson, what satisfaction did you expect from placing Evans & Rogers on record in this case ? A. Well, I don’t know what you would call it, perhaps revenge. . . . They made a; contract with me that they knew was illegal, and that they could make void and I could not collect, and then to take advantage of that contract and deny it and repudiate it after I had performed my part of it.”
And I here remark, parenthetically, that the evidence of Thomas Nelson, above set forth, which is not disputed nor the effect of it in any sense neutralized hy the testimony of any of the witnesses who testified in the case, shows that the disbarment proceedings, so far as he was concerned, was a case of blackmail to extort money from Evans & Rogers, which this court, in the opinion under consideration, held he was not entitled to receive. On this phase of the controversy this court, so far as material here, said that the services for which “Alfred H. Nelson was, under the agreement, to receive through Thomas Nelson, amounting to $1793.33, . . . were never rendered.” And, again, the court said: “Neither Alfred H. Nelson nor Thomas Nelson was entitled to receive any part of the amount recovered under said contract.”
On the filing of the report of the referee and the findings of fact made by him, together with a transcript of the evidence taken at the hearing, the Attorney-G-eneral and counsel appointed by, and who appeared in the cause as friends of the court, jointly filed a brief in the cause on behalf of the *322state. Tbe questions of fact discussed iu tbe brief relate solely to tbe conduct of Evans & Bogers in entering into tbe alleged cbampertous contract, and tbe only legal questions therein discussed relate to tbe law of champerty. Tbe only reference made in tbe brief to tbe matter which seems to have impelled this court to make additional findings and to render tbe judgment complained of is tbe following: “We think tbe respondents will not thank their counsel for tbe suggestion, in their brief, that tbe $1666.66 retained by them is tbe money of their clients, and not their own. This would be shunning Scylla and falling into Charybdis.” Moreover, counsel who represented Thomas Nelson in bis suit against Evans & Bogers, and who, after familiarizing himself with all of tbe facts, prepared tbe information upon which tbe disbarment proceedings were instituted, in integrity, legal learning, and ability stands high in bis profession. In fact, in these respects be is regarded as tbe peer of any member of tbe bar of this court. It is apparent that it did not occur to him, either in tbe Thomas Nelson suit against Evans & Bogers, in which be sought to recover for bis client tbe $1793.33, or in tbe disbarment proceedings, that this money belonged to tbe widow and children, and that Evans & Bogers were wrongfully withholding it from them. As I have stated, it was not claimed, nor even suggested, either by tbe Attorney-General or tbe eminent counsel who appeared in tbe case as friends of tbe court, that tbe widow and children, in tbe order and decree of distribution of tbe money recovered, did not receive every cent that they were entitled to receive. On tbe contrary, tbe only reasonable inference that can be drawn from tbe record is that all of tbe attorneys mentioned believed that if it were not for tbe alleged cbampertous character of tbe contracts mentioned Thomas Nelson would have been entitled to receive this money from Evans & Bogers. I invite attention to tbe attitude of counsel for Thomas Nelson and tbe attorneys - who appeared for tbe state merely for tbe purpose of showing that, even if it were conceded that tbe widow and children were entitled to tbe $1793.33 mentioned, *323it nevertheless was a question upon which legal minds might well differ, and would have a material bearing on the question of good faith on the part of Evans & Rogers, who have persistently claimed that they were entitled to this money, and not Thomas Nelson. And I think the only reasonable inference that can be drawn from the record is that it never occurred to them that the widow and children were entitled to any more than the one-half of the judgment, which was paid them, until their attention was called to the brief filed in the case by their counsel, in which it was said: “If Thomas Nelson did not perform the consideration he promised, viz., secure the attendance of the nonresident witnesses, then Evans & Rogers, who, by that contract, were made trustees of one-third of one-half of the recovery, would have been grossly derelict in duty, violating the rights of their clients, the real beneficiaries, had they paid said Thomas.” Regarding this statement of counsel this court, in the opinion, at page 383 of 22 Utah, page 918 of 62 Pac. (53 L. R. A. 952, 83 Am. St. Rep. 194), says: “The declaration in the respondents’ brief that they were made trustees of that amount ($1793.33) for their clients, the real beneficiaries, was evidently an afterthought. At the argument before us, when the attention of respondents’ counsel was called to that declaration, one of them, in the presence of one of the respondents, . . . notwithstanding his name was attached, as an attorney, to said brief, disputed that declaration, and declared that the respondents were entitled to retain the whole sum distributed to them.” This declaration on the part of counsel was clearly a repudiation of the statement made in the brief. How, then, can it be said that; Evans & Rogers admitted that they were derelict in their duty to their clients, and especially in face of their sworn testimony, wherein they claimed that they were entitled to the money distributed to them ?
Neither the widow, nor any other person who was interested, either directly or indirectly, in the suit against the railroad company - or in the disbarment proceedings, has ever suggested or even intimated, so far as shown by the *324record, that tbe services contracted for by’ tbe widow were not fully performed in every particular. In fact, tbe loyalty of tbe attorneys, especially tbat shown by Evans & Rogers, to tbeir clients, and tbe perseverance witb wbicb they prosecuted tbeir claim against tbe railroad company under circumstances wbicb tbe record shows were of tbe most discouraging character, was highly commendable. They advanced (loaned) tbe widow money to enable her to come from her home to Ogden and be present and testify in tbe cause at tbe several trials (five in number), and to pay other necessary costs and expenses. She was therefore advised tbat after tbe first trial was bad Evans & Rogers, in effect, carried on tbe litigation for her and finally brought it to successful termination. For aught tbat appears in tbe record, tbe widow was perfectly satisfied witb tbe manner in wbicb tbe case was bandied by Evans & Rogers and the outcome of it, and witb tbe amount (one-balf) of tbe Judgment tbat was distributed to her and1 tbe children. It thus appears tbat this question — the assumed dereliction of duty on tbe part of Evans & Rogers to tbeir clients, and upon wbicb tbe final order in tbe opinion is based — was by this court, acting under a misconception of tbe facts, and by a misapplication of legal principles to tbe facts, imported into tbe case on its own motion, after tbe case was argued and submitted. In tbe opinion and judgment complained of it is said tbat Evans & Rogers “put into tbeir own pockets” $1193.33 tbat belonged to tbeir clients. Tbe court therefore, without its power being invoked, went entirely outside of tbe issues and in effect •adjudged1 Evans & Rogers guilty of a crime witb wbicb they bad not been charged, and concerning wbicb no evidence was adduced. For aught tbat appears in tbe record, tbe first intimation tbat Evans & Rogers received tbat they were accused of having appropriated to tbeir own use tbeir clients’ money was when tbe opinion and judgment under consideration was announced by tbe court.
*325
This court, in the case of Maynard v. Insurance Ass’n, 14 Utah, 458, 47 Pac. 1030, referring to certain facts found that were not within the issues, said:
“This, however, is a fact found outside of any issues raised in the pleadings; for nowhere in the complaint or answer does there appear any reference to such a hy-law, nor is its existence shown anywhere in the transcript or abstract, except in the findings of fact. A fact found outside of any issue cannot be considered as supporting the judgment, because facts not in issue need not be found; and, if found, the finding is nugatory and without effect.”
In Cooley’s. Constitutional Law, at page 232, the author, in defining the term “due process of law,” quotes and adopts the language of an eminent advocate and statesman, as follows:
“By the ‘law of the land’ is most clearly intended the general law — a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial.”
In Story, Const. (5 Ed.), sec. 1946, the author says:
“When life and liberty are in question, there must, in every instance, be judicial proceedings; and that requirement implies an accusation, a hearing before an impartial tribunal with proper jurisdiction, and a conviction and judgment, before the punishment can be inflicted.” See 3 Words and Phrases, pp. 2244, 2245.
In Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914, the Supreme Court of the “United States, speaking through Mr. Justice Eield, says:
“Wherever one is assailed in his person or his property, there he may defend; for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.”
*326
In 2 Black on Judgments, sec. 643, the author says:
“Thus, where a judge of prohate has, hy a decree, allowed a widow her distributive share in her husband’s estate, the aсcuracy of the decree, as to the amount by law allowable to her, cannot be called in question collaterally.”
And, again, in section 644, it is said:
“A decree of the probate court settling an executor’s or administrator’s final account and discharging him from his trust, after due legal notice, and in the absence of fraud, is conclusive upon all matters or items which come directly before the court, until reversed; and it will be presumed that it was founded upon proper evidence, and that every prerequisite to a valid discharge was complied with; nor can the decree be impeached in any collateral proceeding.”
In 23 Cyc. 1055 the text, which is written by this same author, contains the following terse statement of the rule as applied to judgments generally:
“A judgment, rendered by a court having jurisdiction of the parties and the subject-matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding.”
*327And on page 1061 tbe same author says:
“Orders and decrees of a surrogate, or of a probate or orphans’ court, in any case in which jurisdiction has attached, are not open to contradiction or re-examination in any collateral proceeding.”
And, again, on page 1063, after illustrating what constitutes a direct attack on a judgment, the same author says:
“On the other hand, if the action or proceeding has an independent purpose and contemplates some other relief or result, although the overturning of the judgment may he important or even necessary to its success, then the attack upon the judgment is collateral. This is the case where the proceeding is founded directly upon the judgment in question, or upon any of its incidents or consequences as a judgment, or where the judgment forms a part of the plaintiff’s title, or of the evidence by which his claim is supported.”
The order and judgment of this court requiring Evans & Rogers to deposit with the clerk of this court $1793.33, with interest thereon, “for the use and benefit of the widow and minor children of Charles A. Nelson,” was, at least, a partial annulment of the order and decree of distribution theretofore made by the district court of Weber county of the money recovered from the railroad company in the suit mentioned. This court, by thus collaterally impeaching and in effect annulling the order and decree оf the district court, clearly acted without jurisdiction. I do not wish to be understood as. holding that this court may not, in a proper proceeding, order an attorney and counselor at law licensed to practice before the courts of record of this state, who wrongfully withholds money or funds from his clients, to account to them for such money or funds, and, if he. fails to comply with the order, to suspend or permanently disbar him. If this court, when its attention was called to the order and decree of distribution, had refused to be bound by any feature of it, on the ground that it was absolutely void because of the alleged champertous features of the contract under which it was obtained, and had required Evans & Rogers to pay the entire sum retained by them, under the decree, into court, and left them to recover for their services on a quantum *328meruM, it might be argued with much force that, since they were officers of the court, such an order, under the circumstances, would have some legal basis upon which to stand. This court, however, did not make the order requiring Evans & Rogers to pay to the clerk of this court, for the use and benefit of the widow and children, the $179 3.3 3 mentioned, on the ground that the order and decree under which they retained the money was void. The court, by making its order, recognized the validity of the decree of distribution, and, in effect, held that the basis upon which the distribution of the fund was made was inequitable; and the order made was, in effect, a modification of the decree.
No claim was made, nor was there any intimation by anyone at the hearing of the disbarment proceedings, so far as shown by the record, that Evans and Rogers, or either of them, induced the court to make and enter the order and decree of distribution of the money recovered in the suit against the railroad company to the parties entitled thereto through misrepresentation or other unprofessional conduct. In fact, this question, as hereinbefore stated, was not an issue in the proceedings. It was incidentally referred to by David Evans in his testimony regarding the settlement which he claimed he had with Mrs. Nelson and Thomas A. Nelson. In the opinion it is said: “It appears from the record that Alfred II. Nelson, the administrator, was absent from the state when the order of distribution was made; and, while it does not in express terms appear that Evans & Rogers obtained the order of distribution, it is inferable that they did. Whether they did or did not procure the order, thеy knew of its provisions, and received one-half of the recovery with full knowledge of all the facts in the case. Neither does it appear that the widow, nor anyone legally qualified to act for the minor children, appeared or was represented in the proceeding in which said order was granted, or that Evans & Rogers advised the widow, or any representative of the minor children, that the widow and minor children were entitled to $1793.33 more than allowed them by the order of distribution.”
*329
And further along in his testimony he said:
“I would like to state right in that connection, too, that at the time I came to settle with Mr. Nelson, to settle with all the parties, they were all present, the widow, Nelson, and all interested; that Nelson insisted that we had made *330a contract with him by which we agreed to pay him one-half of onr fees in the Saunders Case and one-half in the Nelson Case, and I told him that no such contract was made at all, and he seemed to be somewhat dissatisfied about it, and he figured up all the money which he had expended in procuring witnesses, . . . and he was paid by the parties in the manner which I have suggested, somewhere in‘excess of that which he advanced; and I supposed the thing was all satisfactory until he came in the next day and said he had a contract which we made with him in the Nelson Case, and exacted a settlement for that and . stated that if that contract was not fulfilled he would sue us.”
The foregoing is the only evidence in the record bearing upon the distribution of the fund in question under the order of the court.
*331“A. H. Nelson, ... in February, 1892, came into the office of Evans & Rogers, . . . and apprised me of the fact that his brother, Charles Nelson, had been killed in the previous January, while transporting a carload of sheep from Nevada to California, and showed me some letters which he had from the widow of Charles Nelson, asking him to look into the matter or cause of her husband’s death, and furnished him in the letter ‘the names of persons who were eyewitnesses to the cause of his death: He also had a newspaper clipping from some Nevada paper, purporting to contain an account of his brother’s death and cause of it, and consulted me about it. And the result of the conversation was that he was advised by me to write for further particulars in regard to the matter. He received another letter from his sister-in-law, the widow of Charles Nelson, in which she stated’ that she placed the matter entirely in his hands as her attorney, and desired him to do everything which was necessary to secure compensation from the Southern Pacific Company for the negligent killing of her husband, and. directed him, if he saw fit, to employ other attorneys to assist him in the case. . . . We agreed to make a contract to prosecute the case on behalf of the widow and her minor children against the company for fifty per cent, of whatever sum was recovered, the fifty per cent, compensation to be divided between A. H. Nelson and Evans & Rogers, he to receive one-third, and Evans & Rogers to receive two-thirds. Q. The time that you made this contract, was A. H. Nelson administrator for the estate? A. No, sir. He was appointed administrator afterwards, simply for the purpose of promptly prosecuting the suit on behalf of the widow and children. . . . He was selected on account of the relationship, and the fact that he was a brother of the deceased’ — more for convenience, perhaps, than anything else. . . . Q. After the contract was made with A. H. Nelson and suit was commenced, and he was appointed administrator, state whether or not Nelson left Ogden. A. Tes, sir. . . . He left Ogden in 1893 and before the trial of Nelson v. Southern Pac. Co. . . . *332Tbe case was first tried in November or December, 1893; tried at Ogden, and a nonsuit was granted. Q. At tbat time bad you a contract witb Tbomas Nelson ? A. No, sir. Q. Tbat was afterwards ? A. Yes, sir. Q. You may state wbetber, after tbe nonsuit was granted, you commenced another suit in tbe name of tbe administrator for another causo of action. A. Yes, sir; under tbe same, witb A. H. Nelson representing tbe widow and children, having authority from her to employ attorneys to assist her.”
Mr. Evans testified concerning these transactions as follows :
“Q. State, as nearly as you can, Mr. Evans, tbe terms of tbat contract. A. I can only state in a general way. Tbe terms of tbe contract were tbat we agreed, tbe three of us, A. H. Nelson and Evans & Rogers, to prosecute tbat cause for one-half, a contingеnt fee of one-balf. Q. Whom did you agree witb ? A. We made an agreement witb tbe widow and children, as I understand it. I am not clear about tbat contract, because I didn’t draw it. ... I did not draw up tbe contract; but my recollection is tbat be [Nelson] communicated witb bis people in Nevada and California, and they agreed there to give one-balf to tbe three of us if we would take tbe case.”
Regarding tbe understanding tbat Evans & Rogers bad witb tbe widow, Mrs. Nelson, relative to the payment of costs, etc., Mr. Evans testified as follows:
“Mrs. Nelson, being an important witness on tbe question. of damages, appealed to us — that is, Evans & Rogers— for assistance to bring her from California to Utah, in order to give her testimony in tbe case, and likewise to exhibit whatever interest a widow woman, under tbe circumstances, would have. She stated to us tbat she would be glad if we would lend her tbe money or advance it to her; tbat she would return it to us wbetber we won tbe case or lost it, if she bad to earn her money witb her needle. Under this appeal Evans & Rogers advanced her tbe money to bring her here every time she testified in tbe case, which, I believe, was four times. . . . Mrs. Nellie Nelson was a seam*333stress by trade, bad two minor children, and bad no income or support whatever, except that which she earned with her needle. . . . The ease either had to go by default, or we had to lend money to the widow for the purpose of assisting her in carrying it on. . . . That arrangement, however, was not made with her until after the case was ■instituted. . . . She returned, after she received her money, every dollar which we had advanced to her, to us— paid us.”
The foregoing evidence, which is not disputed in any particular, clearly illustrates the terms of the contract between the widow, on one side, and Evans & Rogers and Alfred H. Nelson, on the other. Under the contract these three attorneys were to receive for their services one-half of any amount recovered from the railroad company for the death of Charles A. Nelson, and the widow and the minor children one-half. The widow did not, as the opinion of this court seems to imply, make a separate and independent contract with Alfred U. Nelson for his services, in which she agreed to pay him one-third of one-half of any amount that might be recovered, and another separate and independent contract with Evans & Rogers for their services, in which she agreed to allow them two-thirds of one-half of any amount that might be recovered. The only inference permissible from the evidence is that the widow made but one contract, and by the terms of that contract she agreed to give the three attorneys mentioned a .lump sum of one-half of the amount recovered. No claim was, or is made, that the attorney’s fee agreed upon between the parties and later allowed by the district ceurt in its order and decree of distribution of the money recovered from the railroad company was, under the circumstances, unconscionable, or in any sense disproportionate to the services rendered. Therefore, so long as the attorneys safeguarded their clients’ interests in the suit against the railroad company and discharged every duty required of them by the terms of the contract, it was no concern of their clients on what basis they divided between themselves the fee received for their services, or, for that mat*334ter, wbat arrangements they made between themselves regarding the disposition of it.
But few rules of tbe common law have undergone more sweeping changes in their application than those relating to maintenance and champerty. Under tbe old common law doctrine tbe transfer of cboses in action was prohibited. Tbe reason for this rule was, as stated by Mr. Cbitty in bis work on Bills, (section 6), that
“Such alienations tended to increase maintenance and litigation and afforded means to powerful men to purchase rights of action, and thereby enabled them to oppress indigent debtors whose original creditors would not, perhaps, have sued them.”
In Bay on Contractual Limitations (page 119) tbe author, after giving a brief history of tbe law of maintenance and champerty, says:
“The peculiar state of society out of which such a law grew carried it to the most absurd extremes. Men were held indictable for aiding a litigant to find a lawyer; for giving friendly advice to a neighbor as to his legal rights; for lending money to a friend to vindicate his known legal rights; for offering voluntarily to testify in a pending suit; and other like offices оf charity and friendship. It is not surprising, therefore, that the law on this subject has gradually undergone a great change, which is recognized universally by jurists, judges, and law writers everywhere.”
And, again, on page 120 tbe author says:
*336“This change has been called for by the new conditions of modern society, considered in its varied relations, commercial, political, and sociological. In many of its phases it has been, both in America and England, emphatically discarded as ‘inapplicable to the present condition of society, and obsolete.’ It is accordingly asserted on high English authority that no one has been punished criminally for the offense of maintenance or champerty within the memory of living man.” Stephen, Crim. L. 234.
Warvelle, in bis work on Legal Ethics (section .146), says:
“The ancient doctrine of maintenance grew out of conditions which do not exist and never have existed in the United States. Having little or no foundation in reason, it has fallen into disuse; and the general rule now is that any person claiming a right may contract to pay, for legal services rendered in vindicating it, a stipulated portion of the thing, or of the value of the thing, when recovered, the payment to be dependent solely upon such recovery, instead of paying, or contracting to pay, a certain sum and in any event. Such an agreement does not conflict with the law as now administered; nor does it, in any proper sense, contravene any principle of public policy.”
And, again, the author, after referring to the arguments generally made against such contracts on ethical grounds (section 150), says:
“It not infrequently happens that persons are injured through the negligence or willful misconduct of others, but who yet, by reason of poverty, are unable to employ counsel to assert their rights. In such event their only means of redress lies in gratuitous service, which is rarely given, or in their ability to find some one who will conduct the case for a contingent fee. That relations of this kind are often abused by speculative attorneys, or that suits of this character are turned into a sort of commercial trafile by the ‘personal injury’ lawyer, does not destroy the beneficient idea last discussed. So it will be seen that much can be said in favor of contingent fees, viewed solely from an ethical standpoint.”
See, also, Archer on. Ethical Obligations of the Lawyer, p. 191.
*337
“It is neither against public policy nor champertous for an attorney to loan his client money with which to pay costs of suit, nor to advance money necessary to carry on the suit as needed, when such advances are made as a loan, with the express or implied understanding or agreement for its repayment, and there is no contract of indemnity against the client’s liability to pay costs.”
This doctrine has been recognized and followed in this jurisdiction. (Potter v. Ajax Min. Co., 22 Utah, 273, 61 Pac. 999.)
In 5 Am. & Eng. L. 829 it is said:
“The doctrine of champerty and maintenance does not prohibit an attorney retained in a case from advancing the necessary incidental costs of litigation; and, even though he advances the money to pay such costs without special agreement, he may recover from his client the amount so advanced.”
In 1 Page on Contracts, see. 339, the author quotes and •adopts the language of 4 Blaekstone Com. 135, as follows:
“A man may, however, maintain the suit of- his near kinsman, ¡servant, or poor neighbor out of charity and compassion, with impunity,” and adds: “A parent may supply his daughter with funds to sue, as for breach of promise and seduction. So it is not maintenance for a wife to aid her husband.”
(See, also, section 341, same volume.)
In Brown v. Bigne, 21 Or. 260, 28 Pac. 11, 14 L. R. A. A. 745, 28 Am. St. Rep. 752, the syllabus, which correctly reflects the doctrine as announced in the opinion, is as follows:
*338“A fair, tona -fide agreement by a lawyer to supply funds to carry on a pending suit, in consideration of having a share of the property in controversy, if recovered, is not per se void, either on the grounds of champerty, as now understood, or of public policy.”
So in the case of Wood v. Casserleigh, 30 Colo. 287, 7t Pac. 360, 97 Am. St. Rep. 138, it was held that the furnishing of documentary evidence and agreeing to pay expenses of litigation for a contingent fee, the claim being a valid one, is not against public policy. (See, also, O‘Driscoll v. Doyle, 31 Colo. 193, 73 Pac. 27.)
There is not a scintilla of evidence in the record that: shows, or tends to show, that Evans & Rogers agreed to prosecute the suit against the railroad company at their own expense for the widow and minor children of Charles A. Nelson; but, on the contrary, the evidence, without conflict, shows that after the contract was entered into and the> suit commenced Evans & Rogers advanced certain sums of money to the widow to carry on the litigation, with the understanding that she would repay to them the sums so advanced, which she accordingly did. Therefore, under the great weight of authority and the decisions of this court, the contract was not champertous; nor did it in any respect contravene any rule of public policy. (Potter v. Ajax Min. Co., supra.) It seems that this court, in determining the character of the contract made with the widow, through Alfred if. Nelson, looked solely to the allegations of the complaint in the suit of Thomas Nelson v. Evans & Rogers, instead of considering the terms of the agreement itself, as shown by the evidence in the matter under investigation.
Mr. Williams, in giving his testimony in the disbarment proceedings, admitted that he made a settlement with Mrs. *341Kennedy without conferring with her attorneys, but denied using improper influences to obtain the settlement, as alleged in the answer. He attempted to justify his actions and course of conduct in that regard pon the ground that they (Evans & Sogers) were making a practice of conducting personal injury cases in the courts of this state under contracts made with their clients similar to the contracts in the A. H. Nelson and Kennedy Cases, which he claimed were illegal and champertous. Regarding this matter, Mr. Williams testified in part as follows:
“I stated then, and I state now, that I went and attempted to settle the case with Mrs. Kennedy for the reason that previous to that we had a case tried in which the champer-tous contract that has been introduced in evidence here was disclosed in that case. . . . The view I took of their position was that they were not entitled to that consideration which I thought members of the profession were ordinarily entitled to receive, and which I was disposed to extend.”
The settlement referred to was afterwards repudiated by Mrs. Kennedy, and the money received in payment of her claim was returned to the railroad company. A trial was had, and a judgment was rendered in favor of the plaintiffs in the sum of $7085. The case was appealed to this court and the judgment affirmed. (18 Utah, 325, 54 Pac. 988.)
It will thus be observed that the settlement was obtained for less than half of the amount ultimately recovered by the plaintiffs in the action. Conceding, for the sake of the argument, that Evans & Rogers, in making their contract with the widow and children of Patrick Kennedy, violated the strict letter of the law, it nevertheless, under the circumstances, was a mere technical rather thаn a substantial infraction. They did not, in either the Nelson Case or in the Kennedy Case, solicit the business. On the contrary, the printed records of those cases, which are on file in this court, show that the plaintiffs in each case sought and obtained the services of Evans & Rogers. In neither of the cases was there any officious intermeddling by Evans *342& Rogers, or either of them, such as the law and the ethics of the legal profession denounce. While settlements of pending cases, made with the clients of opposing counsel in the manner and under the circumstances that counsel for the railroad company procured a settlement with Mrs. Kennedy in the case mentioned;, may not be in violation of law, nor in contravention of ‘any principle or rule of public policy, they nevertheless are not to be commended. (Potter v. Ajax Min. Co., supra.)
In Archer on Ethical Obligations of the Lawyer (page 136), the author says:
“A person who has engaged a lawyer to look after his interests in a given case places the entire matter in his charge. He engages him because he is learned in the law and can protect his clients’ rights. It is the right of the client to have all persons representing adverse interests go to the attorney and negotiate with him, rather than try to take advantage of his own lack of technical knowledge of his rights.”
The author also quotes with approval canon 9 of the American Bar Association’s Code of Ethics, which is as follows:
“A lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel; much less should he undertake to negotiate or compromise the matter with him, but should deal only with his counsel. It is incumbent upon the lawyer most particularly to avoid everything that may tend to mislead a party not represented by counsel, and he should not undertake to advise him as to the law.”
In the trial of the cases mentioned, and others of like character, brought by Evans & Rogers, in their capacity of attorneys, in which Mr. Williams represented the defendants, much ill feeling was engendered between them. Evans & Rogers were severely criticised by Mr. Williams because of the alleged champertous character of the contracts under which they prosecuted this class of cases; and, on the other hand1, Evans & Rogers characterized the’ conduct of Mr. Williams, in importuning their clients to settle pending cases against the railroad company without first consulting them, as unprofessional.
*343I think it may be fairly inferred from the many heated discussions that took place between them in the trial of this class of cases, as shown by the printed records thereof on file in this, court, in which bitter personalities were indulged in between them, that the disbarment proceedings were the outgrowth of this ill, and I might add bitter, feeling existing between them. And I think it may be fairly said that, were it not for the feelings of resentment entertained towards Evans & Rogers by Mr. Williams, and Thomas Nelson’s desire for “revenge,” the proceedings would never have been instituted. While these matters brought out on the hearing before the referee concerning the conduct and method of counsel in conducting or defending, as the case might be, this class of cases can have no possible bearing on the question of the jurisdiction of this court to malee the order and render the judgment complained of, they nevertheless tend1 to explain and to account for, at least to some extent, the action of Mr. Williams and Thomas Nelson in instituting the disbarment. And since these proceedings involved ethical as well as legal questions, I have felt constrained to refer to these matters.
Concurrence Opinion
I fully concur in the conclusions reached by my Associates for the reasons so ably and exhaustively stated in the foregoing opinions. The only question upon which I had any doubt, namely, the jurisdiction of this court to entertain the application, is so fully answered by Mr. Justice Straup that nothing more need be, nor, indeed, could be, said upon that subject.
The question involved in the application most strongly appeals to my sense of justice. No court should hesitate to correct any wrong arising out of its judgments, when it is within its power to do so. This is especially true with respect to any judgment which affects the honor, integrity, standing, or morals of its officers. While the court should be strict in enforcing the rules of ethics, as they affect the conduct of its officers, yet it should also be ever ready and *344quick to correct any wrong that any of its officers may suffer by reason of its judgment, where such correction is possible and legal. In this case it is made apparent that a wrong exists; and it is equally apparent that we have the power to correct it. That the wrong was brought about through inadvertence and with the purest motives of our predecessors, in an effort to reflect justice and to vindicate the law, cannot relieve us from the duty of correcting it. I therefore heartily join my Associates in the foregoing judgment correcting such wrong.