The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-11-30
ATTORNEYS LIEN MATTER
STREET & BOOTH APPLY FOR
LEGAL RELIEF.
Say the Court Ignored the Statutes
In the Case of the Victor Gold
G Silver Mining Company VS.. the
National Bank of the Republic
Utah Statutes Applicable to Case.


ruling, but occasionally this happens,
and there are instances on record where
courts have reversed decisions, when
the showing of law demanded it.
Hon John A. Street and Hiram e.
Booth, esq, counsel for the National
Bank of the Republic ct AL, in the case
OF the Victor Gold & Silver Mining
company VS.. the National Bank of the
Republic ct al, have filed an apolica-
ton for a rehearing in the supreme
court, which asks the court to reverse
its decision in the matter
The question involved was an attor-
ney's lien on judgment for costs.
The case was originally tried before
Judge William H. King in Provo, in
December 1895.
On appealing the case the mining
company was unable to furnish the
money necessary to perfect the same.
Brown & Henderson, the attorneys,
came to the rescue with the money,
and the appeal was made
Inc case was reversed by the appel
late court, and a decree entered award
ing costs to the plaintiff company. The
costs We're taxed at $242SS, but the
clerk refused to issue an execution.
claiming that the costs had been offset
against two other judgments. which
had been obtained against the mining
company. Counsel for the defendant.
the bank. moved that the court enter
satisfaction of the judgment for costs.
so taxed. in accordance with the su-
preme court decision. Brown & Hen
derSon resisted the motion, presenting
a1ldavits showing they bad advanced
the money. and contending they Were.
entitled to a lien on the judgment.
Judge Higgins held that the attorne rs
had no right whatever in the costs paid
by themselves, and made an order Off
setting the costs against the Judgments.
From that ruling Brown " Henderson
appealed.
The supreme court found that the
attorneys were entitled to DE ren1-
bursed Cor the expenses incurred, and
that they had lien on the judgnert
paramount to all other claims.
Upon the question whether or not
an attorney is entitled to Il lien upon
a judgment obtained by him for his
services, in so obtaining il. the court
refralned from giving an opinion, but
|! added that the authorities, especially
IN this country, on the question of at
torneys' lien at common law ON a iudg-
ment are not harmonious.
1t then ordered a reversal, with di-
rect1on to the lower court to set aside
It's order and decree in the premises.
spondent, the National Bank of the
Republic, feeling aggrieved by the de-
clslon pronounced in this case, petit
lions the court to grant a rehearing.
and reverse its decision for several rea-
sons
First-Because, by inadvertence. the
court entirely overlooked the rights of
( the respondent under section 3454 of the
compiled laws of 1885, which abrogated
T11eiT1 oi1N1o Of Lo -
respect to the rights of the Judgment
debtor to pay his debt upon an execu-
ton issued against his judgment cred
ltor, said section expressly providing
that the officers receipt is a sufficient
discharge for the amount paid"
Second-Because the decision pro-
nounced by the court wholly ignores
the statute of Utah respecting costs.
which provides for costs being taxed
in favor of parties only. The statute
upon which the petitioners rely in this
case is: Whenever costs are awarded
to party by an appellate court, if he
claims such costs, he must. within
thirty days after the remittitur is filed
with the clerk of the court below, de-
liver to such clerk a memorandum of
his costs, verified as prescribed =
and thereafter he may have an execu-
ton therefor as upon a judgment"
emily, in deciding that the respondent
paid the amount of the executions
against the judgment creditor, the Vic
tor Gold & Silver Mining company, at
It's peril, cites cases which apply to vol
untary payments and settlements by
Judgment debtors, none of which apply
to payments made upon execution duly
levied before notice of any claim of
the attorneys for costs
In the brief filed with the clerk of the
court, the attorneys submit that rights
of property and rights of parties to lit
cation are primarily to be determined
by the code of Utah, and not by the de-
cisions of courts of other states. Sec
ton 3,454 of the laws of 1855, being the
same as section 3241 of the revised stat
utes of 1898, constitutes an absolute
protection and safeguard to all persons
Indebted to judgment debtor Who
upon writs of execution, pay the
amount due to the judgment debtor to
the officer levying the writ, and this
section makes a rule of property and
of right which expressly declares that
the officers receipt is sufficient dis
charge for the amount paid" The
brief then pertinently adds:
IF we were not to look to our own
statutes upon such questions, but must
ignore these statutes and search the
conflicting decisions of courts, then the
legal profession is at the mercy OF
guessing what the decision of our oWr
supreme court will be upon these mat
tiers. The statute is exclusive in its
scope and under the doctrine of Eek
pressio unius est exclusion alterius,
adopted by this court in the case OF
the North Point Consolidated Irriga-
ton company VS.. the Utah & Salt Lake
Canal company, IA Utah, 1856, it is ap-
parent that it leaves no room what
ever to make the exception which is
made by this court in it's original de-
cision in this case"
After citing more of the statutes in
connection with the case the brief con-
cludes with the following statement:
ITO permit the decision of the court
to stand with the substantive law Oh
the state, giving TO debtors the appar-
ent right to pay the amount due the
execution debtor to the officer, and with
the statute expressly stating that the
receipt of the officer is q sufficient dis
charge for the amount so paid, i III
tend to bring the administration OF
justice into disrepute among laymen
who cannot understand that there are
instances not covered by the broadness
of the general statute and not express
" excepted, in which they can only
pay to the officer on execution at their
peril. Many judgments are paid and
discharged by funds derived through
writs of execution and garnishment
and the layman does not consult an at
torney with respect to such payment
the receipt of the officer being a suffi-
Gent discharge under the statute, an6
has been recognized as such as a gen.
era1 rule of property and of right in
this state for many years.
I'VE submit that the oversight of the
court in not giving any weight or men
ton to the statute which has prevailed
for MANY years. and still prevails NAV