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Norton v. McIninch et al., 50 Utah 253

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plaintiff its certified statements of credits to be made upon the contract of each person claiming damages, and the plaintiff shall immediately upon such judgment being entered satisfy the same in consideration of the credits being made as aforesaid, and thereafter the defendant shall make such credits upon the several water contracts held by the said plaintiff and several assignors named in said complaint, as the plaintiff may direct, and not otherwise. That all maturing payments in each contract of the parties whose names appear in the several causes of action in said complaint shall be extended one year from the date of the maturity of each payment to each of the persons named in the said causes of action, and it is especially stipulated and agreed that all claims or demands or causes of action on the part of each and every one of the said specified parties named in the several causes of action accruing up to the time of the entry of such judgment have been and are liquidated and discharged. That the said action shall be dismissed upon the entry of such judgment and the giving of such credits and making such extensions of time of payments as aforesaid." (Italics ours.)

This stipulation was signed by the plaintiff personally, by his attorney, the plaintiff here, and the attorney for the defendant. The award was made by the arbitrators and duly filed in said cause. The court thereupon accordingly made its findings of fact and conclusions of law, and entered judgment, viz.:

"In consideration of the premises it is hereby ordered, adjudged, and decreed that the plaintiff recover nothing from the defendant, that the defendant go hence without day, and that each of the parties hereto pay his own costs in this action."

On the 14th day of April, 1911, plaintiff filed his notice of claim of attorney's lien by virtue of the provisions of section 135, Comp. Laws Utah 1907, and amendments thereto, in the office of the county recorder of Millard County, and on the 1st day of February, 1916, caused the same to be recorded in said office, setting forth, among other things, that he "hereby claims and intends to claim and hold, and does have and hold,

Appeal from Millard County, Fifth District

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a lien upon those certain lands and premises, water and water rights, stipulations, agreements, and contracts, claims for damages and credits, actions, and rights of action, waivers and extensions, causes and choses in action owned and reputed to be owned by the hereinafter named settlers, to secure the payment of the sum of ten thousand dollars owing to Chas. E. Norton, as attorney and counselor at law and solicitor in chancery, for legal services performed and furnished in and in connection with the grievances and claims of settlers against the Oasis Land & Irrigation Company, and for legal services performed and furnished in connection with and as attorney and counselor at law in a certain action for damages and other special and general relief in the district court of the Fifth judicial district, in and for Millard County,

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entitled 'M. S. McIninch, Plaintiff, v. Oasis Land & Irrigation Company, Defendant,' and naming therein 248 "settlers," or reputed landholders, with a description of their lands, acreage, and number of their contracts. Numerous other exhibits, consisting of letters of the defendant M. S. McIninch to the plaintiff herein, and letters of other defendants to McIninch, the contract with the state of Utah, and water contracts, were received and admitted in evidence; but their contents and purport, not being material or necessary in the determination of the appeal to this court, are omitted here.

The plaintiff, in his own behalf, testified that he was not employed directly by any of the defendants, other than the defendant McIninch, and that he was not seeking a money judgment against any of the defendants, except McIninch; that he made the stipulation for the judgment rendered in the case of M. S. McIninch, Plaintiff, v. Oasis Land & Irrigation Company, Defendant. At the conclusion of the testimony the trial court rendered judgment:

"That the complaint as against all of the defendants, with the exception of M. S. McIninch, should be dismissed, and that a judgment for the amount claimed in the complaint be given in favor of the plaintiff, and against the defendant

Norton v. McIninch et al., 50 Utah 253

M. S. McIninch, for the sum prayed for; and it is so adjudged, ordered, and decreed."

Plaintiff appeals and assigns as error:

"(1) That the decision is against the law in this: Section 135, Compiled Laws Utah 1907, gave him a lien upon the seventy-six causes of action set forth in the complaint in a case in the above-entitled court wherein M. S. McIninch was plaintiff and the Oasis Land & Irrigation Company was defendant, and that from the commencement of that action, in July, 1910, he had a good and valid lien upon his client's causes of action, which attaches to the stipulated judgment, report of the arbitrators, and the proceeds thereof, in whomsoever hands they have come, and is not affected by any settlement between the parties before or after judgment, and the court erred in refusing to enforce that lien against all of the defendants.

"(2) That the decision is contrary to the evidence in this: The records and files in that case (McIninch v. Oasis Land & Irrigation Company) and the records and files in this case, together with the 140 exhibits offered in evidence, affirmatively show that the plaintiff is entitled to equitable relief against all of the defendants for the enforcement of his lien and the collection of reasonable attorney fees for services rendered for all defendants.

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(3) That the court failed to do equity to plaintiff, and failed to exercise its equity jurisdiction in this case, by permitting the defendants to retain the full benefits of said litigation, as shown by the record in this case."

Section 135, Comp. Laws Utah 1907, provides:

"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 whomsoever hands they may come;

Appeal from Millard County, Fifth District

and cannot be affected by any settlement between the parties. before or after judgment."

Under the foregoing statute the plaintiff contends that for services rendered he is entitled to recover a judgment for $4,900, and that the same be adjudged a lien upon the seventysix causes of action set forth in the former action or proceeding of the defendant M. S. McIninch, Plaintiff, v. Oasis Land & Irrigation Company, and also all the matters and property rights involved therein.

We have set forth herein, substantially, the facts alleged in plaintiff's complaint and the testimony adduced in his behalf in the trial of this cause, and it is inconceivable to our minds upon what theory the plaintiff could, with any degree of consistency, have expected the trial court to award him the relief prayed for in his complaint in this action. Some degree of sanctity must be accorded to the proceedings of any court; and to wholly disregard the express stipulations, judgment, and decree made and entered, wherein the plaintiff so actively. participated in all the proceedings, as did the plaintiff herein, in the cause wherein he now seeks to have held for naught, in order that he may be enabled to maintain a lien for services alleged to have been rendered by him as an attorney and officer of the courts, would be no less than declaring all court and judicial procedure farcical and the judgments of the courts untrustworthy and wholly undependable. That the plaintiff has expressly stipulated and waived all rights to a lien under the provisions of the statute he here invokes is too apparent to admit of any discussion; and under the law, and in the interest of common justice, to our minds, the trial court was amply justified in denying the relief prayed for, and in entering the judgment of which plaintiff so bitterly complains. Such rights as the plaintiff may have had to a lien under the provisions of the statute and the authorities he seeks to have aid him in the enforcement of his demands for compensation for such services as he may have rendered for defendants were, by his own acts and conduct, in permitting, stipulating to, and directing the procedure of his client's cause to the final judgment rendered by the court, wholly

Roper v. Crozier et al., 50 Utah 262

waived, and he is now estopped and precluded from disturbing the existing rights of the parties, defendants here, under said judgment. R. C. L. section 166; Goodrich v. McDonald, 112 N. Y. 157, 19 N. E. 649; Clare v. Lockhard, 122 N. Y. 263, 25 N. E. 391, 9 L. R. A. 547; Jones, Liens (3d Ed.), section 231.

The judgment of the district court is affirmed, with costs. FRICK, C. J., and MCCARTY, THURMAN, and GIDEON, JJ., concur.

ROPER v. CROSIER et al.

No. 2889. Decided June 28, 1917. (167 Pac. 808.)

1. VENDOR AND PURCHASER-RECOVERY OF MONEY PAID-FRAUD. In an action by plaintiff to recover for amounts paid and land conveyed in satisfaction of a contract for the purchase of orchard land, evidence held insufficient to show that certain defendants, though they participated in the organization of the corporation, which owned no such land and had small assets, were parties to the fraud. (Page 268.)

2. VENDOR AND PURCHASER-RECOVERY OF MONEY PAID FRAUD. Appellant and another organized a corporation having a capital stock of $1,000, which was practically all held by appellant and one associate. They proceeded to advertise that the corporation was the owner of valuable orchard lands, and offered them to the public. Appellant's associate interested plaintiff inducing her to enter into a contract for the purchase of several acres of orchard land. Pursuant to the contract, plaintiff made some cash payments, and transferred valuable land to appellant's associate in satisfaction of the contract. Appellant knew of the transaction, and knew that the corporation had no assets, and in fact admitted that he was the corporation. Held that, though he did not receive the proceeds from plaintiff's land, or her cash payment, appellant was liable to plaintiff in an action to recover the same. (Page 268.)

Appeal from District Court, Sixth District; Hon. Joseph H. Erickson, Judge.

Action by Pricilla Roper against A. J. Crosier and others. Judgment for plaintiff. Certain defendants appeal.

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