accomplice, even though they believe the testimony of the accomplice to be true as to every material fact, and are convinced by it of the guilt of the defendant beyond a reasonable doubt. People v. Clough, 73 Cal. 348, 15 Pac. 5; State v. Carr, 28 Or. 389, 42 Pac. 215; Underhill, Crim. Ev. p. 93. It is not essential, however, that the corroborative evidence shall be sufficient of itself to support a verdict of guilty; nor is it essential that the testimony of the accomplice be corroborated on every material point. It is sufficient if the testimony of the accomplice is corroborated as to some material fact, and that the corroborative evidence in and of itself, and "without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense." State v. Spencer, 15 Utah, 154, 49 Pac. 304. In 12 Cyc. 456, the rule is well and tersely stated as follows: "It is necessary, however, that the evidence corroborating an accomplice shall connect or tend to connect defendant with the commission of the crime. Corroborative evidence is insufficient where it merely casts a grave suspicion on the accused. It must not only show the commission of the offense and circumstances thereof, but must also implicate the accused in it. * * * But where the cir cumstances when proved, taken separately or collectively, are consistent with the innocence of the accused, there is no corroboration, and a verdict of conviction based thereon will be set aside." (Italics ours.) And on page 457 of the same volume it is said: "Evidence which shows no more than that the defendant and the accomplice were seen together shortly before the crime is not such corroboration as the law requires." We also invite attention to the case of State v. James, 32 Utah, 152, 89 Pac. 460, in which this question was, to some extent, involved. It is contended on behalf of appellant that the testimony of the accomplice in this case (the prosecutrix) was not corroborated by other evidence as required by the foregoing provisions of the statute. We think the contention is well founded. There is not a scintilla of evidence, except that given by the accomplice, which tends to show that there was any undue intimacy between appellant and the prosecutrix in their associations together either before or after the time when it is alleged the offense was committed. Mr. Cameron, the proprietor of the hotel, was called as a witness for the state, and testified that he had not seen the appellant "pay any attention to" the prosecutrix. And the only time they were seen in each other's presence, except when appellant appeared in the dining room of the hotel in company with other people to get his meals, was when they left the drug store and walked a short distance along one of the public streets of Panguitch in the daytime on the occasion referred to by Haycock and the prosecutrix in their testi mony. It must be conceded that under these circumstances there was nothing in that incident that could with the utmost stretch of the imagination be construed as evidence of appellant's guilt. Nor was it a circumstance which in the remotest degree tended to connect him with the commission of the offense when considered in connection with the statement made by appellant to Hay cock to the effect that he told the prosecutrix that if it were he, referring to her pregnancy, he would do the right thing. This statement, as the record now stands, was more in the nature of a denial than a confession of guilt. It was not shown that this remark was induced by any charge or accusation made against appellant by the prosecutrix. In fact, her testimony shows that she merely informed appellant of her condition. She did not suggest nor even intimate, so far as shown by the evidence, that appellant was responsible for her condition, or that he had had sexual intercourse with her. It is contended that the facts and circumstances disclosed by the testimony of witnesses other than the accomplice tends to show that appellant had an opportunity to commit the crime of which he stands convicted, and that this was a sufficient corto uphold the judgment of conviction. Of roboration of the testimony of the accomplice course, the ability and opportunity of a defendant to commit the particular crime for which he is on trial may always be shown in connection with other facts to establish his guilt; but we know of no rule of law which holds that the mere opportunity to commit a crime is in and of itself an incriminating circumstance. In this case, however, there is no evidence, other than that given by the accomplice, tending to show that appellant had an opportunity to commit the crime. True, the evidence shows that during a part of the time appellant was stopping at the Cameron Hotel he occupied a room next to the room occupied by the prosecutrix, and that each of those rooms was entered from a hallway that extended through the upper part of the building. It is insisted on behalf of the state that the close proximity of the rooms to each other is in and of itself sufficient to show that appellant had the opportunity to commit the crime. We do not think so. There is no evidence, except that of the accomplice, which in any way tends to show that appellant was ever in or that he had access to the room occupied by the prosecutrix. And there is no evidence that any one ever saw him going to or returning from the room. Therefore the contention that appellant had the opportunity to commit the crime is not supported by any evidence in the case except that given by the accomplice. It must be conceded that the admitted facts in the case show conclusively that a (60 Wash. 214) crime was committed. The fact that the prosecutrix had illicit relations with some PLUMMER et al. v. GREAT NORTHERN * * * man other than her husband, and as a result of these relations gave birth to a child, is no proof in and of itself that the appel lant is the guilty party. Furthermore, the evidence shows that a man, who was a transient and a comparative stranger in Panguitch, stopped at the Cameron Hotel at least a part of the time that the prosecutrix and appellant were there, and the evidence tends to show that this man was on much more friendly terms with the prosecutrix in a social way than was appellant. According to her own testimony, she went to a theater with this party, and after the theater was over went walking with him. She testified: "He gave me a bottle of brandy, but I never drank only when I felt like it. I would drink it when I didn't feel well." She also testified that because of the attentions thus paid her by the party last mentioned her father became very much displeased, and “raised a row about it." This evidence, however, has but little, if any, bearing on the case, and we would not refer to it were it not for the fact that much importance is attached to the part of the evidence which it is claimed tends to show that appellant had an opportunity to commit the crime charged in the information. This evidence shows that there was at least one other man who, judging from appearances as disclosed by the record, had as good an opportunity as did the appellant to have unlawful relations with the prosecutrix. fact, it may be fairly deduced from this evidence that the other man had had a better opportunity. In While the testimony of Haycock and the circumstances of appellant and the prosecutrix walking together along one of the public streets of Panguitch might create a suspicion that he is probably guilty of the crime charged, yet facts and circumstances relied on as corroboration which justify a mere suspicion only that the accused may be guilty do not meet the requirements of the statute. 1 Ency. Ev. 108; People v. Williams, 29 Hun (N. Y.) 520; State v. Willis, 9 Iowa, 582; Gillian v. State, 3 Tex. App. 132; People v. Thompson, 50 Cal. 480; People v. McLean, 84 Cal. 480, 24 Pac. 32. As stated, the corroborating testimony must in and of itself tend to connect the accused with the commission of the offense; otherwise, he is entitled to an acquittal. There are other errors assigned, but they are so wanting in merit that we deem it unnecessary to discuss them. The judgment is reversed, with directions to the trial court to grant a new trial. STRAUP, C. J., and FRICK, J., concur. RY. CO. (Supreme Court of Washington. Sept. 22, 1910.) 1. ATTORNEY AND CLIENT (§ 190*)—SETTLEMENT WITHOUT ATTORNEY'S CONSENT-GOOD FAITH PRESUMED. A settlement by a client of a claim in suit will be presumed to have been made in good faith, as to the attorney's right to fees, in the absence of a showing of fraudulent intent. [Ed. Note. For other cases, see Attorney and Client, Dec. Dig. 190.*] 2. ATTORNEY AND CLIENT (§ 189*)-CLIENT'S A client can settle or compromise a controversy in litigation without consulting his counsel. RIGHT TO SETTLE CLAIM. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 407; Dec. Dig. § 189.*] 3. ATTORNEY AND CLIENT (§ 76*)—Nature of RELATION. An attorney is but a representative whose authority is revocable at his client's will, though a contingent fee be agreed upon. Client, Cent. Dig, §§ 120-131; Dec. Dig. § 76.*1 [Ed. Note.-For other cases, see Attorney and 4. ATTORNEY AND CLIENT (148*)—CONTINGENT FEES-EFFECT. Without express provision, an agreement for an attorney's contingent fee does not act as interest in a future recovery exists without an an assignment of a part of the claim, and no assignment. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 352, 353; Dec. Dig. § 148.*] 5. ATTORNEY AND CLIENT (§ 189*)-FEESLIEN. An attorney can enforce a lien for his fees on money agreed to be paid to his client on settlement only under statutory authority. [Ed. Note. For other cases, see Attorney and Client, Dec. Dig. § 189.*] 6. ATTORNEY LIEN-STATUTES. AND CLIENT (§ 172*)-FEES Rem. & Bal. Code, § 136, giving an attorney a lien on money in the hands of his client's adversary "in an action or proceeding in which of notice, can be applied only where there is an the attorney was employed" from the giving action or proceeding pending within the state. [Ed. Note. For other cases, see Attorney and Client, Dec. Dig. § 172.*] 7. ATTORNEY AND CLIENT (§ 131*)-FEES— RIGHTS OF ATTORNEY. An award for attorney's fees under British Columbia Workmen's Compensation Act, § 10, limiting an attorney's right in his client's recovery to an allowance to be made by the arbitrator on application, precludes attorneys who sue in British Columbia under that act from claiming any other interest in a recovery. [Ed. Note. For other cases, see Attorney and Client, Dec. Dig. § 131.*] Department 1. Appeal from Superior Court, Spokane County; E. H. Sullivan, Judge. Action by W. H. Plummer and another against the Great Northern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed and remanded, with instructions. L. F. Chester and J. J. Lavin, for appel- | mentioned. The respondents thereupon belant. Geo. A. Latimer and W. H. Plummer, gan the present action against the appellant for respondents. to recover a sum equal to one-half the sum paid Funk in the settlement, averring that they had a lien on the fund allowed him in the settlement as security therefor and were deprived thereof by the payment of the same to Funk, who was then and at all times since insolvent and well known to the appellant to be so. The learned trial judge took the respondents' view of the law and entered a judgment in their favor for the sum of $250, one-half of the amount paid Funk by the appellant in the settlement. The cause was tried before the lower court without the intervention of a jury, and the case is before us on the findings of fact made by the court; the evidence not having been certified into the record. These findings we have recited in substance, and it will FULLERTON, J. Some time prior to April 30, 1908, one Hilton G. Funk received personal injuries while in the employ of the Nelson & Ft. Sheppard Railway Company, a branch line of the appellant, Great Northern Railway Company, located in British Columbia, and on that day employed Geo. A. Latimer, one of the respondents, to prosecute such actions or proceedings as would be necessary to recover for the injury, agreeing to pay him therefor one-half of any sum he might recover as a fee for his services. Immediately thereafter written notice of the terms of the contract was served by Latimer on the local claim agent and attorney of the railway company then having offices in the city of Spokane. After the execution be observed therefrom that the court made of the contract, Latimer formed a partner- no finding to the effect that there was any ship with his co-respondent, Plummer, and fraud or collusion between the appellant assigned to him a one-half interest in the and Funk, entered into for the purpose of claim. The respondents thereupon employ- defrauding the respondents out of their fees, ed the legal firm of Taylor & O'Shea of Nel- and in so far as the appellant is concerned son, British Columbia, who instituted pro- at least we must treat the settlement as ceedings, under the workmen's compensation having been made in good faith. It must act of British Columbia, against the Nelson be remembered, also, that it is the unques& Ft. Sheppard Railway company to recover tioned right of parties to a lawsuit, or confor the injury to Funk. While these pro- troversy of any kind, to settle and comproceedings were pending, and before anything mise their difficulties without consulting pertaining to the merits of the claim had their counsel. Attorneys are but the reprebeen determined, the claim agent of the sentatives of the parties. Their authority Great Northern Railway Company, acting un-is revocable at any time at the pleasure of der the direction of one A. H. McNeill, who the client, and they cannot legally object to had charge of the legal business of the appellant company in British Columbia, settled the claim with Funk, acting for himself, for the sum of $500, and obtained Funk's written release of all claims against the appellant. The workmen's compensation act, under which the proceedings were pending, contains the following provision: "Sec. 10. Any sum awarded as compensation shall be paid on the receipt of the person to whom it is payable under any agreement or award, and his solicitor or agent shall not be entitled to recover from him, or to claim a lien on, or deduct any amount for costs from the said sum awarded, except such sum as may be awarded by the arbitrator, on an application made by either party to determine the amount of such costs to be paid to the said solicitor or agent, such sum to be awarded subject to taxation and to the scale of costs prescribed by said regulations." After the settlement, and pursuant to this provision of the act, an arbitrator was appointed who awarded to Solicitor O'Shea, of the firm of Taylor & O'Shea, the sum of $85 as costs and arbitrator's fees in the | (3) Upon money in the hands of the adverse cause that had been instituted on behalf party in an action or proceeding, in which of Funk, and thereafter Taylor & O'Shea remitted one-half thereof to the respondents. No suit or action was begun on behalf of Funk in the state of Washington or elsewhere, other than the proceedings above any course their client may take concerning the matter in controversy. The rights of the attorney in this regard are not changed by the fact that the attorney is by agreement to receive as a contingent fee a part of the sum which may be recovered. Without an express stipulation to that effect, an agreement for a contingent fee will not act as an assignment of a part of the claim, and no interest in a future recovery exists without an assignment. McRea v. Warehime, 49 Wash. 194, 94 Pac. 924; Lewis v. Chicago, St. P. & K. C. Ry. Co. (C. C.) 35 Fed. 639. The right of the respondents to recover, therefore, depends on the fact whether they had a lien upon the money agreed to be paid Funk in the settlement. As there was no such common-law lien, the lien, if any exists, must be derived from the statute. The only statute in our state that can be said to be at all applicable to the case is section 136, Rem. & Bal. Code, which reads as follows: "An attorney has a lien for his compensation, whether specially agreed upon or implied, as hereinafter provided: the attorney was employed, from the time of giving notice of the lien to that party." But we think it clear that, in order for a lien to arise from notice under this statute, there must be an action or proceeding pending against the adverse party in some court, and, as the statute can have no ex tra territorial effect, it must be an action pending in some one of the courts of this state. Any other rule would make the statute oppressive upon the debtor. He would be compelled to decide at his peril all controversies between the attorney and his client over the question as to which of them was entitled to the money in his hands. Moreover, the statute will bear no other construction. The lien is given "upon money in the hands of the adverse party in action or proceeding," and this in itself presupposes an action or proceeding pending in a court. Tested by the foregoing principies, it is plain that the respondents ought not to have been permitted to recover, and that the judgment of the trial court is erroneous for the reasons stated. We think, however, the judgment is erroneous for another reason. The law of the forum in which the proceedings were prosecuted precludes the attorney from taking any part of the recovery as a fee or reward except such as shall be awarded him by the arbitrator. Having chosen that forum to prosecute the action, and having called upon the arbitrator to make an award, and having accepted the award so made, we think the respondents are estopped from claiming any other fee from his client. And having no cause of action against their client for fees, they cannot of course recover against the adverse party. The judgment appealed from is reversed, and the cause is remanded, with instructions to enter a judgment for the defendant to the effect that the plaintiffs take nothing by their action. 2. MORTGAGES (§ 201*)-INSURANCE OF MORTGAGED PROPERTY-RIGHTS OF MORrtgagor. premises insured, as required by the mortgagee, A mortgagor failing to keep the mortgaged may not charge a loss to the mortgagee who failed to insure the property. [Ed. Note. For other cases, see Mortgages, Cent. Dig. §§ 532-536; Dec. Dig. § 201.1 3. MORTGAGES (§ 415*) -FORECLOSURE-EFFECT OF TRUST RELATION. A mortgagee in a mortgage to secure debts incurred in the conduct of a mercantile business may foreclose the mortgage on showing a necessity therefor, though he agreed to conduct the business, and though he must account for the entire property received by virtue of the trust relation. FULLERTON, J. For some time prior to November 26, 1909, the appellant, W. W. Parry owned and operated two general stores in Okanogan county; the one being located at Molson and the other at Tonasket. He also owned certain real property situated in the same county. On the date named he was indebted to divers wholesale dealers who had sold him goods and merchandise in a sum exceeding $65,000, and was insolvent. To secure an equal division of his property among his creditors, he, together with his wife, executed and delivered to the respond RUDKIN, C. J., and CHADWICK, GOSE, ent two mortgages; the one covering his and MORRIS, JJ., concur. (60 Wash. 204) real property and the other his stocks of merchandise, and each of the mortgages being conditioned for the payment of the indebtedness at times specified and set forth SPOKANE MERCHANTS' ASS'N v. PARRY in the mortgage. At the time of the execu et ux. (Supreme Court of Washington. Sept. 22, 1910.) 1. APPEAL AND ERROR (§ 889*)-DEFECTS IN PLEADING DISPOSITION OF CASE ON AP PEAL. tion and delivery of the mortgages, the parties entered into a written agreement by the terms of which the appellants turned over to the respondent the general stores and the merchandise covered by the mortgages Where, in a suit to foreclose a mortgage, with power to conduct and manage them given to pay debts incurred in a mercantile during the life of the mortgages in such business, brought by the mortgagee, who agreed manner as it should deem most beneficial to to conduct the business for the mortgagor, the complaint alleged that the mortgagee had rethe creditors; both of the appellants agreealized from the assets turned over $24,637, and ing to render it such assistance as lay within denied the affirmative answer that he had real- their power. It was further provided that ized more than $90,000, the court did not err in admitting evidence that the mortgagee had the proceeds of the business, after deducting collected $76,000, and that the sum had been the expenses of operation, should be paid to expended in the conduct of the business, ex- the creditors of W. W. Parry; such paycept $24,637, for the defect in the pleading aris-ments to be made whenever the amount on ing from the failure to state the facts was amendable and was treated as sufficient by the trial court, and hence under Rem. & Bal. Code, 1752, the court on appeal must treat the complaint as properly amended. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. 8 889.*] hand equaled 10 per cent. of the claims. The respondent conducted the business under the agreement for something over a year, when the store at Tonasket burned. The business was continued at the other store until August 14, 1909, when the respondent began the present action to foreclose the the express terms of the mortgage the apmortgages, alleging that it was no longer pellants bound themselves to keep this mortprofitable to continue the business. In its gaged property insured against loss and damcomplaint the respondent alleged that the age by fire, and, having failed so to do, they debts of the appellants at the time of the cannot charge the loss by reason thereof to mortgages amounted to the sum of $69,788.- | the respondent. What claim the cestuis que 77; that it had realized from the property trustent may have against the respondent turned over to it $24,637.90; that it had in- for this loss, should the assets fail to pay curred expenses amounting to the sum of them in full, we, of course, need not consider $3,602.90; and that the indebtedness re- here. maining unpaid for which the mortgages stood as security amounted to the sum of $50,223.50. An answer was filed, putting in issue the allegations of the complaint as to the amount of the indebtedness, the expenses incurred, and the amount realized, and averring affirmatively that the respondent had realized more than $90,000 from the assets turned over to it. This affirmative allegation was put in issue by a reply in the form of a denial. On the trial the court found that the respondent had fully accounted for all moneys received by it, and that there was a balance due on the indebtedness which the mortgages stood to secure of $41,075.90, and entered a judgment of foreclosure for that sum. It seems that certain accounts and bills receivable were turned over to the respondent with the other property, and it is claimed that these should have been accounted for before a foreclosure of the mortgages was allowed. But enough appears in the record to show a necessity for foreclosing the mortgages, and that is all that is necessary in the foreclosure action. The respondent must finally account for the entire property, the assets and bills receivable as well as all other property it has received or will receive in virtue of the trust relation. On the facts we think the court reached a correct conclusion. The business seems to have been managed with fair business ability and with reasonable economy. Furthermore, the appellants were present during the entire time, had access at all times to the books, and were consulted constantly by the agents of the respondent as to the conduct of the business. The complaints against the method in which the business was managed would have been entitled to more consideration had they made them known prior to the commencement of the foreclosure proceedings. The respondent asks us to increase the amount of the recovery, contending that the amount found due by the court is less than the amount shown to be due by the evidence by over $3,000. But the judgment entered corresponds with the findings made by the court, and these we think are justified by the evidence. The appellants first suggest a question of practice. On the trial of the case the evidence introduced by the respondent showed that it had collected during the time it conducted the business as proceeds thereof upward of $76,000, and was allowed over the objection of the appellants to show the disposition it had made of this money, namely, that it had expended it, with the exception of $24,637.90, in the conduct of the business. It is urged here that this was error; that since the respondent had alleged that it realized only $24,637.90 out of the business, and had incurred a necessary obligation in so doing of $3,602.90, it should not have been permitted to show the realization and expenditure of different sums, especially since it had denied the appellants' allegation that it had realized from the business a sum upwards of $90,000 by a general denial. But it is a sufficient answer to this objection to say that the defect in the pleading, if any such there was, was an amendable defect; and, inasmuch as the lower court treated the complaint as sufficient and allowed each of the parties to present his entire case STATE ex rel. HALL v. WICKER, Police thereunder, this court must treat it in the same way, and consider all amendments as made which might have been made. Rem. & Bal. Code, § 1752. The burning of the store building at Tonasket caused a considerable loss, estimated by the appellants at $10,000. It is urged that this should be charged to the respondent because it had failed to keep the property insured. But we think the appellants are in no position to urge this claim under the circumstances shown here, even were it a valid claim under any circumstances. By The judgment will stand affirmed. RUDKIN, C. J., and GOSE, MOUNT, and DUNBAR, JJ., concur. Justice. (60 Wash. 238) (Supreme Court of Washington. Sept. 24, 1910.) 1. MUNICIPAL CORPORATIONS (636*)—VIOLA TION OF ORDINANCE-JURISDICTION OF JUSTICE OF THE PEACE-STATUTES. Under Rem. & Bal. Code, § 7735%, makmisdemeanor, prosecuted in the name of the ing the violation of any municipal ordinance a state, a justice of the peace has jurisdiction over criminal prosecutions for the violation of ordinances of a city of the fourth class, not4683 (Pierce's Code, § 3071), as amended by withstanding Ballinger's Ann. Codes & St. § Laws 1909, c. 98, giving justices of the peace *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |