181 P. 165 | Utah | 1919
From the findings of the lower court the following facts appear:
At that meeting counsel for Lundy, interveners herein, advised Cappuccio that they claimed a lien upon the amount of
The objections on the part of plaintiff’s counsel to the granting of the motion are best stated in the language of one of the counsel at that hearing as follows:
“The contract between Mr. Lundy and his attorneys was — the understanding was — that Lundy had nothing, and that the attorneys must look to the amount recovered in 'that action for their fees, and with that understanding the attorneys proceeded and did all the work that was done in that action. We will also show that the defendant Cappuceio had full knowledge of the claim made by , the attorneys of their lien on the judgment.”
The court made findings of fact and conclusions of law, entered an order or judgment denying the motion of the defendant to have the judgment satisfied, fixed the amount of
Numerous assignments of error are made — among others, that the court had no power or right to make findings of fact or conclusions, as there were no issues presented upon which such findings could be made; that the court erred in permitting interveners, Ball and Rydalch, to mate a claim of lien, upon the ground that they had failed to file any complaint in intervention setting forth the facts on which relief was sought; that the court erred in finding that the interveners were entitled to recover the sum of $150, or any other sum, ■for the reasons that (a) the parties interested in and affected by that finding had not presented any such issue by any pleadings, and the court was without authority to make such finding, and (b) that the finding is not supported by the evidence.
'J'he interveners claim the right to a lien under the provisions of Comp. Laws Utah 1917, section 346, which reads as follows:
“The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report, decision, or judgment in his client’s favor and the proceeds thereof in whatsoever hands they may come, and cannot be affected by any settlement between the parties before or after.judgment.”.
It may be conceded that under the provisions of that section the interveners, as attorneys for Lundy, had a lien upon the judgment in question and the proceeds
“I told Cappuceio at that time, and Mr. Ball told him, that if he went to paying out money on this matter without bringing us in and looking after our fees, he would do so at his own peril, and we talked in a friendly way and told him our position.”
The testimony of both interveners was to the effect that no contract fixing a definite sum was made by them with the plaintiff, Lundy, but that they were to receive whatever compensation they did receive from the proceeds of the judgment. The above quotation from the testimony of the witness inter-vener reflects accurately, it seems, the position, and their con-
Under the provisions of the section quoted, the lien of an attorney for compensation for his, services attaches from the commencement of an action upon the judgment
At the hearing on the motion, nominally at least, the inter-veners were representing the plaintiff, Lundy; but as we have, seen, Lundy was not the real party in interest. The in-terveners. could not represent the plaintiff, Lundy, in any proceedings attempting to fix the amount of their compensa
In view of the entire record, and after a careful consideration of the rights and interests of the parties, we have, with some doubt as to what order ought to be made in this case, concluded to reverse the order of the district court and remand the cause, with directions to permit the interveners to proceed in such manner as they may elect, either, in this proceeding or in an independent action, and bring all the parties interested before the court for a determination of their respective rights, to enforce the lien of interveners to the