Victor Gold & Silver Mining Co. v. National Bank of the Republic

18 Utah 87 | Utah | 1898

Baktch. J.

This case, of the Victor Gold and Silver Mining Co. against the National Bank of the Republic, was originally tried in 1895, and judgment entered in favor of the defendant.

It appears that on appealing the case the plaintiff was unable to bear the expenses, and that its attorneys furnished the money necessary to take the appeal. The appellate court reversed the case, remanded it for a new trial, and adjudged that the appellant should recover its costs to be taxed and have execution therefor. The costs were then regularly taxed at $242.88, but the clerk refused to issue execution, oil the ground that the costs had been offset against two other judgments which had been recovered against the plaintiff. On these judgments the defendant had been served with writs ofi execution and had paid the officer serving the same $235.39, and then having paid $7.40 to the clerk of the court, made a motion for an order of the court to require the clerk to enter satisfaction of the judgment for costs, so taxed, in pursuance of the mandate of the appellate court. This motion was resisted by Brown & Henderson, for themselves and for the plaintiff Victor Gold and Silver Mining Company, they presenting affidavits, showing that the money had been advanced by the attorneys and belonged to them, and contending that they were entitled to a lien on the judgment. On March 4, 1898, the court sustained the motion holding that the attorneys had no lien on the judgment for costs, and ordered that the costs taxed in favor of the plaintiff be offset against the executions, and that the judgment be satisfied. Thereupon the plaintiff and Brown & Henderson, the attorneys, appealed.

The respondent insists that the decision appealed from was not a final judgment, and therefore not appealable. We do not think this position is well taken. The judgment for costs was entered in pursuance of the mandate of the Supreme Court. The motion was made to offset these costs and satisfy that judgment. A hearing was had thereon at which affidavits were presented, and other evidence introduced, all parties being present, and the cause regularly submitted to, and finally decided by the court. That decision, as to those costs, and the rights of the plaintiff in the original action and his attorneys, was a final judgment, preventing either of the parties from ever recovering them in any way. The order was made in a matter,. distinct from the general subject of litigation, and was final in its nature, affecting only the parties to the particular controversy. By that judgment or order the rights of the appellants to the costs were absolutely determined, and, therefore, they had a right to bring the cause to this court for review. Const. Art. 8, Sec. 9; Williams v. Morgan, 111 U. S. 684; Hovey v. McDonald, 109 U. S. 150; Trustees v. Greenough, 105 U. S. 527; Curtis v. Richards, 40 Pac. 57.

It appears that on the 8th of April, 1898, the court filed a finding of facts, and the respondent maintains that it was an additional, finding, made at the request of the defeated party, subsequent to the decision, and that therefore this court on appeal can consider neither the additional finding nor the evidence on which it was based. This court cannot disregard a finding of facts simply because it was filed subsequent to the rendering of the decision of the court.

Secs. 3168 and 3169, R. S., as to the time and order of filing the finding of facts and entry of judgment are directory merely and not mandatory. 5 Ency. Pl. & Pr. 939; Broad v. Murray, 44 Cal. 228.

Under the statute, however, an express finding of facts is necessary, and, where it contains mere general conclusions instead of facts involved in the issues, and affords no information as to the particular facts considered by the court as established, the court has power after filing the same to correct, amend, or modify the finding, so as to give true expression to the decision of the court, as to the rights of the parties. Bixby v. Bent, 59 Cal. 522. Polhemus v. Carpenter, 42 Id. 375.

In this case it does not appear that any express finding of facts was filed prior to the filing of the one in question. It is true the court previously filed an opinion, but, while an opionion of a court, in deciding a case, setting forth the reasons for the judgment, may be of great importance on account of the information which it imparts respecting the legal principals which govern,the court and should guide the litigants, such opinion is not a finding of facts, within the meaning of the statute, and will not be so regarded. The “decision” which is required to be filed, under Sec. 3168, is an entirely different thing from an “opinion” which a trial court may or may not file as it pleases. The decision of a court is its judgment, the opinion consists of the reasons given for the judgment. In rendering the decision the finding of facts and conclusions of law must be separately stated, and when* so stated they form the basis of the judgment or decision. Sec. 3168, R. S.; 5 Ency. Pl. & Pr. 936, 937 and note; McClory v. McClory, 38 Cal. 575.

Under the circumstances shown by the record, we would not be warranted in disregarding the finding in question. It must be considered not as an additional finding of facts, but as the one showing the facts involved in the issues.

The appellants insist that the court erred in holding that the attorneys had no lien on the judgment for costs and disbursements and in ordering that the defendant National Bank of the Republic, in the original action, had the right ,to offset other judgments, which had been obtained against the plaintiff, against the judgment for costs. We are of - the opinion that this contention is well founded. As we have seen the judgment for costs was entered pursuant to the mandate of the supreme court and the appellant, in the original case was to have execution for the same. The judgment was made up wholly of costs and disbursements,, and these, their client being unable to do so, had been paid by the attorneys, who, it appears, were confident that the case had been erroneously decided by the trial court against their client, and were successful in the appeal, to prosecute which the costs and disbursements were incurred. Under these circumstances it is apparent that the attorneys were entitled to be reimbursed for their expenses so incurred and paid, and the judgment having been entered for such costs, the attorneys had a lien .on that judgment paramount to all other claims. Such lien could not be discharged, nor the judgment satisfied, by payment to any ether person, or persons, except the attorneys. Nor could the judgment for costs, under the circumstances, be offset against other judgments which had been obtained against their client. When, therefore, the defendant, National Bank of the Bepublic, paid the amount of its indebtedness, under the judgment for costs, to other parties having claims against the plaintiff, it made such payment at its peril, and cannot now set them up as a bar to recovery upon the judgment for costs, nor have that judgment offset against other judgments so illadvisedly paid by it.

In this case the attorneys were not even required to give notice that they claimed a lien, because the judgment being for costs only, it of itself imparted legal notice of the lien. Such lien rests upon the equity of the claim of an attorney to be reimbursed out of the proceeds of the judgment which he recovered for his client, on account of which the costs have arisen and have entered into the judgment itself. That the lien exists, as to costs and disbursements, is well settled by the weight of authority, and many decisions hold that it exists for compensation for services as well.

In Marshal v. Meech, et al, 51 N. Y. 140, it was said. “Such a lien existed before the Code, and is not affected by any provision of the Code. The lien exists not only to the extent of the costs entered in the judgment, but for any sum which the client agreed his attorney should have as a compensation for bis services. To tbe amount of sucb lien, tbe attorney is to be deemed an equitable assignee of tbe judgment. To tbe extent of tbe taxed costs entered in tbe judgment, tbe judgment itself is legal notice of tbe lien, and this lien cannot be discharged by payment to any one but the attorney. Tbe judgment debtor pays these costs to tbe party at bis peril. But if tbe attorney claims compensation beyond tbe taxed costs, under some agreement with bis client, express or implied, bis lien for sucb compensation can be protected against payment to tbe client only by notice to tbe judgment debtor.”

In Currier v. Boston and Maine Railroad, 37 N. H. 223, it was held that an attorney had a lien upon tbe judgment rendered in favor of bis client for the amount of bis fees and disbursements in tbe suit, but that tbe lien extended only to the fees and disbursements of tbe attorney on account of tbe taxable costs.

So, in Stratton v. Hussey, 62 Me. 286, it was observed: “ Tbe attorney need not notify tbe debtor of bis lien. The right of lien is paramount to that of tbe parties to a setoff of mutual demands. It cannot be defeated by a discharge of tbe client. It is of tbe highest equity, and is entitled to tbe fullest protection.”

Mr. Justice Lyon, in Rice v. Garnhart, 35 Wis. 282, said: “It cannot be doubted that tbe attorney has a lien upon tbe judgment which be has received for bis client, for bis services and disbursements in recovering tbe same.”

Tbe lien of an attorney on a judgment for costs also exists in England. 8 Am. & Eng. Ency. of Law, (2d ed.) 447; 2 Kent. Comm. 641; Story on Agency, Sec. 383; Rooney v. Second Ave. R. Co., 18 N. Y. 368; McDonald v. Napier, 14 Ga. 89; Weed Sewing Machine Co. v. Boutelle, 56 Vt. 570; Carpenter v. Sixth Ave. R. Co., 1 Am. Law Reg. 410, 419; Wells v. Hatch, 43 N. H. 246; McGregor v. Comstock, 28 N. Y. 237; Ely v. Cooke, Id., 365; In Re Paschal, 10 Wall. 483; Henchey v. City of Chicago, 41 Ill. 136; Louisville, etc., Ry. Co. v. Wilson, 138 U. S. 501; Coughlin v. N. Y. C. & H. R. R. Co., 71 N. Y. 443; Ward v. Craig, 87 N. Y. 550; Barker v. St. Quintin, 12 M. & S. 440, 451; Ormerod v. Tate, 1 East 464.

We expressly refrain from passing upon tbe question whether or not an attorney is entitled to a lien upon a judgment obtained by him for his services in obtaining it, because such question is not involved in this case. It must be admitted that the authorities, especially in this country, on the question of an attorney’s lien at common law on a judgment are not harmonious. The cases cited by respondent from California show that the opposite view prevails in that state, and it appears the trial court followed those decisions. We think, however, that the weight of authority accords with the views herein expressed.

We do not deem it important to discuss any other points presented, as the question of lien is decisive of this case.

The case is reversed and remanded with directions to the court below to set aside its order and decree in the premises. Costs to be awarded the appellants.

Zane, C. J. and Miner, J. concur,