Nelson v. Evans, 21 Utah 202

Nelson v. Evans

21 Utah 202 | Utah | 1900

Pee Cueiam.

Among other allegations, the complaint charges that Charles A. Nelson was killed while, traveling on the *204train of the Southern Pacific Nailway Company, and that the plaintiff, as administrator, under a contract made with the law firm of Evans & Rogers, commenced and prosecuted a suit for the recovery of damages arising through the negligence of the company; that the defendants agreed to prosecute the action for damages, and as compensation for their services and expenses incurred in carrying on the suit, and for the fees of officers, obtaining the attendance and providing for the expenses of witnesses, and other like costs and expenses as might be incurred in the trial of the case, the defendants agreed to accept, and Nelson agreed to pay, one-half of whatever suin' might be recovered as damages in said action; that in consideration thereof, the defendants agreed to prosecute the case to final judgment, and also to pay and discharge all taxable costs incurred incident to procuring witnesses, and other costs in the prosecution of the case, and that upon said agreement being made the defendants commenced to prosecute said action successfully to judgment; that on December 2, 1893, a written contract was made between the parties, whereby it was agreed, between them as follows:

“ Ogden, Utah, Dec. 2, 1898.

We, the undersigned, agree to give Thomas Nelson one-third of one-half of any amounts which may be collected either on compromise or otherwise, in the ease of Alfred H. Nelson, as administrator of the estate of Charles A. Nelson, deceased, v. Southern Pacific Co., in consideration of said Thomas Nelson furnishing witnesses necessary to prosecute said case. ’ ’

It is further alleged that said case was tried three times, the last resulting in a judgment for the plaintiff in the sum of $10,760, which sum was paid, and one-half thereof, namely, $5,380, was received by defendants herein; that *205said defendants successfully prosecuted said action; that plaintiff procured the necessary witnesses therein, and paid the expenses of said witnesses, during their attendance at the trials of said case, and paid divers sums of money for the taking of depositions to be used on the trial thereof; that by reason of such services and such payments plaintiff was entitled to receive one-third of one-half of said sum recovered, namely, $1,793.33; that plaintiff had demanded from defendants one-third of one-half of said judgment and interest, so received by them; to wit: $1,793.33, which demand was refused.

To this complaint defendants interposed a demurrer that the complaint did not state facts sufficient to constitute a cause of action. The demurrer was sustained, and the action dismissed with costs.

Upon the argument of this case, counsel for the defendant, in support of the demurrer claimed that the facts as stated in the complaint show that it does not state a cause of action, for the reason that it appears therefrom that the contract made as alleged was champertous and illegal as between the parties thereto, and that defendants were charged therein with illegally maintaining and prosecuting action.

This contract was made in December, 1893, before Sec. 135, Eev. Stat. 1898, was enacted.

It appears from the complaint that defendants were to furnish and did furnish and pay the expenses and fees of witnesses, the expenses of obtaining depositions of witnesses, fees of officers, and other like costs and expenses that occurred during the prosecution of the ease, and that they agreed to pay all taxable costs that might arise in the action.

In the case of Croco v. Oregon Short Line R. R. Co., 18 Utah, 321, this court held that the common law was in *206force in this State at the time of tbe adoption of the present constitution, so far as was compatible with our situation and government, and that its force as applied to ch ampertous contracts was modified by the passage of Sec. 3683, C. L. U. 1888 ; and it was further held that “Under Sec. 3683 it was competent for an attorney and client to agree upon the attorney’s compensation, and such compensation may be made contingent upon success, and payable by percentage or otherwise, out of the proceeds of the litigation. But it was not competent for the attorney, in consideration thereof, to agree to pay the advance fees and costs of suit thereafter to be commenced. ’ ’

We are of the opinion that any agreement between the attorney and his client, whereby the attorney undertakes and agrees to furnish and pay the expenses of the wit. nesses and officers, and other expenses and costs in the prosecution of a case which he is to commence and prosecute, in order to establish and assert a claim of the client, in consideration of which he is to receive a stated part or share of the amount thereby recovered, and who, during the prosecution of the action maintains the suit by paying such expenses, is champertous and against public policy, and can not be enforced by either party under the law of this State, as it stood when this action was commenced.

In the absence of such agreement the measure and mode of compensation of attorneys was by statute left to the agreement of the parties, and might include a share of the results of a litigation, or the amount thereof may depend upon contingency.

The contract as stated in the complaint is illegal, and comes within the rule prohibiting maintenance and cham-perty. Croco v. Oregon Short Line R. R. Co., 18 Utah,. *207311; Lyon v. Hussy, 31 N. Y., Supp. 281; Gilbert v. Holmes, 64 Ill., 548; Lacy v. Havender, 146 Mass., 615; 5 Am. & Eng. Enc. of Law, p. 824.

The demurrer to the complaint was. properly sustained. The judgment of the district court is affirmed, with costs.