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accomplice, even though they believe the tes- mony. It must be conceded that under these timony of the accomplice to be true as to circumstances there was nothing in that inevery material fact, and are convinced by cident that could with the utmost stretch of it of the guilt of the defendant beyond a the imagination be construed as evidence reasonable doubt. People v. Clough, 73 Cal. of appellant's guilt. Nor was it a circum348, 15 Pac. 5; State v. Carr, 28 Or. 389, stance which in the remotest degree tended 42 Pac. 215; Underhill, Crim. Ev. p. 93. It to connect him with the commission of the is not essential, however, that the corrobora- offense when considered in connection with tive evidence shall be sufficient of itself to the statement made by appellant to Haycock support a verdict of guilty; nor is it es- to the effect that he told the prosecutris sential that the testimony of the accom- that if it were he, referring to her pregplice be corroborated on every material point. nancy, he would do the right thing. This It is sufficient if the testimony of the ac- statement, as the record now stands, was complice is corroborated as to some material more in the nature of a denial than a confact, and that the corroborative evidence in fession of guilt. It was not shown that this and of itself, and "without the aid of the remark was induced by any charge or actestimony of the accomplice, tends to con- cusation made against appellant by the prosnect the defendant with the commission of ecutrix. In fact, her testimony shows that the offense.” State v. Spencer, 15 Utah, 154, she merely informed appellant of her condi49 Pac. 304. In 12 Cyc. 456, the rule is tion. She did not suggest nor even intimate, well and tersely stated as follows: "It is so far as shown by the evidence, that appelnecessary, however, that the evidence cor- lant was responsible for her condition, or roborating an accomplice shall connect or that he had had sexual intercourse with her. tend to connect defendant with the commission of the crime. Corroborative evidence is stances disclosed by the testimony of wit

It is contended that the facts and circuminsufficient where it merely casts a grave suspicion on the accused. It must not only show show that appellant had an opportunity to

nesses other than the accomplice tends to the commission of the offense and circum- commit the crime of which he stands constances thereof, but must also implicate the victed, and that this was a sufficient coraccused in it.

But where the cir

roboration of the testimony of the accomplice cumstances when proved, taken separately or collectively, are consistent with the inno- to uphold the judgment of conviction. or cence of the accused, there is no corrobora- course, the ability and opportunity of a detion, and a verdict of conviction based there fendant to commit the particular crime for on will be set aside." (Italics ours.)

which he is, on trial may always be shown

And on page 457 of the same volume it is said: in connection with other facts to establish “Evidence which shows no more than that his guilt; but we know of no rule of law the defendant and the accomplice were seen

which holds that the mere opportunity to together shortly before the crime is not such commit a crime is in and of itself an incrimcorroboration as the law requires." We

inating circumstance. In this case, however, also invite attention to the case of State v.

there is no evidence, other than that given James, 32 Utah, 152, 89 Pac. 460, in which by the accomplice, tending to show that apthis question was, to some extent, involved.

pellant had an opportunity to commit the It is contended on behalf of appellant that crime. True, the evidence shows that during the testimony of the accomplice in this case

a part of the time appellant was stopping at (the prosecutrix) was not corroborated by the Cameron Hotel he occupied a room next other evidence as required by the foregoing to the room occupied by the prosecutrix, and provisions of the statute. We think the con

that each of those rooms was entered from tention is well founded. There is not a scin

a hallway that extended through the upper tilla of evidence, except that given by the part of the building. It is insisted on beaccomplice, which tends to show that there half of the state that the close proximity of was any undue intimacy between appellant the rooms to each other is in and of itself and the prosecutrix in their associations to sufficient to show that appellant had the opgether either before or after the time when portunity to commit the crime. We do not it is alleged the offense was committed. Mr. think so. There is no evidence, except tha: Cameron, the proprietor of the hotel, was

of the accomplice, which in any way tends called as a witness for the state, and testi- i to show that appellant was ever in or that fied that he had not seen the appellant “pay he had access to the room occupied by the any attention to" the prosecutrix. And the prosecutrix. And there is no evidence that only time they were seen in each other's pres- any one ever saw him going to or returning ence, except when appellant appeared in the from the room. Therefore the contention dining room of the hotel in company with oth- that appellant had the opportunity to comer people to get his meals, was when they left mit the crime is not supported by any evithe drug store and walked a short distance dence in the case except that given by the along one of the public streets of Panguitch accomplice. in the daytime on the occasion referred to by It must be conceded that the admitted Haycock and the prosecutrix in their testi- facts in the case show conclusively that a

a

crime was committed. The fact that the

(60 Wash. 214) prosecutrix had illicit relations with some PLUMMER et al. V. GREAT NORTHERN man other than her husband, and as a re

RY. CO. sult of these relations gave birth to a child,

(Supreme Court of Washington. Sept. 22, is no proof in and of itself that the appel.

1910.) lant is the guilty party. Furthermore, the 1. ATTORNEY AND CLIENT (8 190*)_SETTLEevidence shows that a man, who was MENT WITHOUT ATTORNEY'S CONSENT-GOOD

FAITH PRESUMED, transient and a comparative stranger in

A settlement by a client of a claim in suit Panguitch, stopped at the Cameron Hotel at will be presumed to have been made in good least a part of the time that the prosecutrix faith, as to the attorney's right to fees, in the and appellant were there, and the evidence absence of a showing of fraudulent intent. tends to show that this man was on much

[Ed. Note. For other cases, see Attorney and

Client, Dec. Dig. 190.* ] more friendly terms with the prosecutrix in a social way than was appellant. According 2. ATTORNEY AND CLIENT ($ 189*)-CLIENT'S

RIGHT TO SETTLE CLAIM. to her own testimony, she went to a theater A client can settle or compromise a conwith this party, and after the theater was troversy in litigation without consulting his over went walking with him. She testified: counsel. “He gave me a bottle of brandy, but I never client, Cent. Dig. & 407; Dec. Dig. & 189.* ]

[Ed. Note.-For other cases, see Attorney and drank only when I felt like it.

I would drink it when I didn't feel well.” 3. ATTORNEY AND CLIENT (8 76*)–NATURE OF

RELATION. She also testified that because of the atten

An attorney is but a representative whose tions thus paid her by the party last men- authority is revocable at his client's will, though tioned her father became very much dis

a contingent fee be agreed upon. pleased, and "raised a row about it.”. This client, Cent. Dig, $$ 120-131; Dec. Dig. 8° 76.* ]

[Ed. Note.-For other cases, see Attorney and evidence, however, has but little, if any,

4. ATTORNEY bearing on the case, and we would not refer

AND CLIENT (148*)-CONTIN

GENT FEES-EFFECT. to it were it not for the fact that much im Without express provision, an agreement portance is attached to the part of the evi- for an attorney's contingent fee does not act as dence which it is claimed tends to show that interest in a future recovery exists without an

an assignment of a part of the claim, and no appellant had an opportunity to commit the assignment. crime charged in the information. This evi [Ed. Note.-For other cases, see Attorney and dence shows that there was at least one oth- Client, Cent. Dig. $8 352, 353; Dec. Dig. §

148.*] er man who, judging from appearances as disclosed by the record, had as good an op

5. ATTORNEY AND CLIENT (8 189*)-FEES

LIEN. portunity as did the appellant to have un

An attorney can enforce a lien for his lawful relations with the prosecutrix. In fees on money agreed to be paid to his client fact, it may be fairly deduced from this evi on settlement only under statutory authority. dence that the other man had had a better

[Ed. Note.--For other cases, see Attorney and

Client, Dec. Dig. $ 189.*] opportunity. While the testimony of Haycock and the 6. ATTORNEY AND CLIENT (8 172*)-FEES

LIEN-STATUTES. circumstances of appellant and the prosecu

Rem. & Bal. Code, s 136, giving an attortrix walking together along one of the public ney a lien on money in the hands of his client's streets of Panguitch might create a suspicion adversary "in an action or proceeding in which that he is probably guilty of the crime of notice, can be applied only where there is an

the attorney was employed” from the giving charged, yet facts and circumstances relied action or proceeding pending within the state. on as corroboration which justify a mere [Ed. Note.–For other cases, see Attorney and suspicion only that the accused may be guilty Client, Dec. Dig. $ 172.*] do not meet the requirements of the statute. 7. ATTORNEY AND CLIENT (8 131*)-FEES1 Ency. Ev. 108; People v. Williams, 29

RIGHTS OF ATTORNEY. Hun (N. Y.) 520; State v. Willis, 9 Iowa, Columbia Workmen's Compensation Act, $ 10,

An award for attorney's fees under British 582; Gillian v. State, 3 Tex. App. 132; Peo- limiting an attorney's right in his client's reple v. Thompson, 50 Cal. 480; People v. Mc-covery to an allowance to be made by the arLean, 84 Cal. 480, 24 Pac. 32. As stated,

bitrator on application, precludes attorneys who

sue in British Columbia under that act from the corroborating testimony must in and of claiming any other interest in a recovery. itself tend to connect the accused with the [Ed. Note.--For other cases, see Attorney and commission of the offense; otherwise, he is Client, Dec. Dig. § 131.*] entitled to an acquittal. There are other errors assigned, but they Court, Spokane County; E. H. Sullivan.

Department 1. Appeal from Superior are so wanting in merit that we deem it

Judge. unnecessary to discuss them. The judgment is reversed, with directions against the Great Northern Railway Com

Action by W. H. Plummer and another to the trial court to grant a new trial.

pany. From a judgment for plaintiffs, de

fendant appeals. Reversed and remanded, STRAUP, C. J., and FRICK, J., concur. with instructions.

L. F. Chester and J. J. Lavin, for appel- , mentioned. The respondents thereupon belant. Geo. A. Latimer and W. H. Plummer, 1 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 FULLERTON, J. Some time prior to they had a lien on the fund allowed him April 30, 1908, one Hilton G. Funk received in the settlement as security therefor and personal injuries while in the employ of the were deprived thereof by the payment of the Selson & Ft. Sheppard Railway Company, same to Funk, who was then and at all times a branch line of the appellant, Great Nor- since insolvent and well known to the apthern Railway Company, located in British pellant to be so. The learned trial judge Columbia, and on that day employed Geo. took the respondents' view of the law and A. Latimer, one of the respondents, to prose- entered a judgment in their favor for the cute such actions or proceedings as would be sum of $250, one-half of the amount paid necessary to recover for the injury, agreeing Funk by the appellant in the settlement. to pay him therefor one-half of any suin The cause was tried before the lower court he might recover as a fee for his services. without the intervention of a jury, and the Immediately thereafter written notice of case is before us on the findings of fact the terms of the contract was served by Lat- made by the court; the evidence not having imer on the local claim agent and attorney been certified into the record. These findings of the railway company then having offices we have recited in substance, and it will 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 reinembered, 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 ap- any course their client may take concerning pellant company in British Columbia, settled the matter in controversy. The rights of the claim with Funk, acting for himself, for the attorney in this regard are not changed the sum of $500, and obtained Funk's writ- by the fact that the attorney is by agreeten release of all claims against the appel- ment to receive as a contingent fee a part lant. The workmen's compensation act, un- of the sum which may be recovered. Withder which the proceedings were pending, out an express stipulation to that effect, an contains the following provision: "Sec. 10. agreement for a contingent fee will not act Any sum awarded as compensation shall be as an assignment of a part of the claim, paid on the receipt of the person to whom and no interest in a future recovery exists it is payable under any agreement or award, without an assignment. McRea v. Wareand his solicitor or agent shall not be enti. hime, 49 Wash. 194, 94 Pac. 924; Lewis v. tled to recover from him, or to claim a lien Chicago, St. P. & K. C. Ry. Co. (C. C.) 35 on, or deduct any amount for costs from Fed. 639. The right of the respondents to the said sum awarded, except such sum as recover, therefore, depends on the fact whethmay be awarded by the arbitrator, on an er they had a lien upon the money agreed application made by either party to deter- to be paid Funk in the settlement. As there mine the amount of such costs to be paid | was no such common-law lien, the lien, if to the said solicitor or agent, such sum to any exists, must be derived from the statute. be awarded subject to taxation and to the The only statute in our state that can be scale of costs prescribed by said regulations." said to be at all applicable to the case is After the settlement, and pursuant to this section 136, Rem. & Bal. Code, which reads provision of the act, an arbitrator was ap- as follows: "An attorney has a lien for his pointed who awarded to Solicitor O'Shea, compensation, whether specially agreed upon of the firm of Taylor & O'Shea, the sum of or implied, as hereinafter provided: $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 the attorney was employed, from the time of remitted one-half thereof to the respondents. giving notice of the lien to that party." No suit or action was begun on behalf of But we think it clear that, in order for Funk in the state of Washington or else- a lien to arise from notice under this statwhere, other than the proceedings above ute, there must be an action or proceeding

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9

pending against the adverse party in some 2. MORTGAGES (8 201*)-INSURANCE OF MORTcourt, and, as the statute can have no ex

GAGED PROPERTY-RIGHTS OF MORTGAGOR. tra territorial effect, it must be an action premises insured, as required by the mortgagee,

A mortgagor failing to keep the mortgaged pending in some one of the courts of this may not charge a loss to the mortgagee who state. Any other rule would make the stat failed to insure the property. ute oppressive upon the debtor. He would (Ed. Note.-For other cases, see Mortgages, be compelled to decide at his peril all contro- Cent. Dig. $8 532–536; Dec. Dig. 201.*] versies between the attorney and his client 3. Mortgages ($_415*) - FORECLOSURE-EF.

FECT OF TRUST RELATION. over the question as to which of them was

A mortgagee in a mortgage to secure debts entitled to the money in his hands. More incurred in the conduct of a mercantile busiover, the statute will bear no other construc-ness may foreclose the mortgage on showing a tion. The lien is given "upon money in the necessity therefor, though he agreed to conduct hands of the adverse party in action or pro- the entire property received by virtue of the

the business, and though he must account for ceeding," and this in itself presupposes an trust relation. action or proceeding pending in a court. [Ed. Note.-For other cases, see Mortgages,

Tested by the foregoing principies, it is Cent. Dig. $ 1210; Dec. Dig. § 415.*) plain that the respondents ought not to have

Department 1. Appeal from Superior been permitted to recover, and that the judg-Court, Okanogan County; E. W. Taylor, ment of the trial court is erroneous for the

Judge. reasons stated. We think, however, the judg

Action by the Spokane Merchants' Associament is erroneous for another reason. The law of the forum in which the proceedings a judgment for plaintiff, defendants appeal.

tion against W. W. Parry and wife. From were prosecuted precludes the attorney froin

Affirmed. taking any part of the recovery as a fee or reward except such as shall be awarded him

Perry D. Smith, for appellants. Warren by the arbitrator. Having chosen that for- W. Tolman, for respondent. um to prosecute the action, and having called upon the arbitrator to make an award, and FULLERTON, J. For some time prior having accepted the award so made, we to November 26, 1909, the appellant, W. W. think the respondents are estopped from Parry owned and operated two general stores claiming any other fee from his client. And in Okanogan county; the one being located having no cause of action against their client at Molson and the other at Tonasket. He for fees, they cannot of course recover also owned certain real property situated in against the adverse party.

the same county. On the date named he was The Judgment appealed from is reversed, indebted to divers wholesale dealers who and the cause is remanded, with instructions had sold him goods and merchandise in a to enter a judgment for the defendant to the sum exceeding $65,000, and was insolvent. effect that the plaintiffs take nothing by To secure an equal division of his property their action.

among his creditors, he, together with his

wife, executed and delivered to the respondRUDKIN, C. J., and CHADWICK, GOSE, ent two mortgages; the one covering his and MORRIS, JJ., concur.

real property and the other his stocks of merchandise, and each of the mortgages

being conditioned for the payment of the in(60 Wash. 204)

debtedness at times specified and set forth SPOKANE MERCHANTS' ASS'N v. PARRY in the mortgage. At the time of the execu

tion and delivery of the mortgages, the (Supreme Court of Washington. Sept. 22, parties entered into a written agreement by 1910.)

the terms of which the appellants turned 1. APPEAL AND ERROR (8 889*)-DEFECTS IN PLEADING-DISPOSITION OF CASE ON AP- the merchandise covered by the mortgages

over to the respondent the general stores and 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 the creditors; both of the appellants agreecomplaint alleged that the mortgagee had realized 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 $24,637, for the defect in the pleading aris- ments to be made whenever the amount on ing from the failure to state the facts was amendable and was treated as sufficient by the hand equaled 10 per cent. of the claims. trial court, and hence under Rem. & Bal. Code, The respondent conducted the business un$ 1752, the court on appeal must treat the der the agreement for something over a year, complaint as properly amended.

when the store at Tonasket burned. The (Ed. Note.-For other cases. see Appeal and Error, Cent. Dig. 88 3621, 3622; Dec. Dig. g business was continued at the other store 889.*]

until August 14, 1909, when the respondent

et ux.

PEAL.

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 inortgages 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. inaining unpaid for which the mortgages It seems that certain accounts and bills stood as security amounted to the sum of receivable were turned over to the respond$50,223.50. An answer was filed, putting in ent with the other property, and it is claimissue the allegations of the complaint as to ed that these should have been accounted the amount of the indebtedness, the expenses for before a foreclosure of the mortgages incurred, and the amount realized, and aver- was allowed. But enough appears in the recring affirmatively that the respondent had ord to show a necessity for foreclosing the realized more than $90,000 from the assets mortgages, and that is all that is necessary turned over to it. This affirmative allega- in the foreclosure action. The respondent tion was put in issue by a reply in the form must finally account for the entire property, of a denial. On the trial the court found the assets and bills receivable as well as all that the respondent had fully accounted for other property it has received or will receive all moneys received by it, and that there was in virtue of the trust relation. a balance due on the indebtedness which the On the facts we think the court reached mortgages stood to secure of $41,075.90, and a correct conclusion. The business seems to entered a judgment of foreclosure for that have been managed with fair business ability sum.

and with reasonable economy. Furthermore, The appellants first suggest a question of the appellants were present during the enpractice. On the trial of the case the evi- tire time, had access at all times to the dence introduced by the respondent showed books, and were consulted constantly by the that it had collected during the time it con- agents of the respondent as to the conduct ducted the business as proceeds thereof up of the business. The complaints against the ward of $76,000, and was allowed over the method in which the business was managed objection of the appellants to show the dis would have been entitled to more consideraposition it had made of this money, namely, tion had they made them known prior to the that it had expended it, with the exception commencement of the foreclosure proceedof $24,637.90, in the conduct of the business. ings. It is urged here that this was error; that The respondent asks us to increase the since the respondent had alleged that it real- amount of the recovery, contending that the ized only $24,637.90 out of the business, and amount found due by the court is less than had incurred a necessary obligation in so the amount shown to be due by the evidence doing of $3,602.90, it should not have been by over $3,000. But the judgment entered permitted to show the realization and ex- corresponds with the findings made by the penditure of different sums, especially since court, and these we think are justified by it had denied the appellants' allegation that the evidence. it had realized from the business a sum up- The judgment will stand affirmed. wards of $90,000 by a general denial. But it is a sufficient answer to this objection to RUDKIN, C. J., and GOSE, MOUNT, and say that the defect in the pleading, if any DUNBAR, JJ., concur. such there was, was an amendable defect; and, inasmuch as the lower court treated the complaint as suflicient and allowed each

(60 Wash. 233) of the parties to present his entire case STATE ex rel. HALL V. WICKER, Police thereunder, this court must treat it in the

Justice. same way, and consider all amendments as

(Supreme Court of Washington, Sept. 24, made which might have been made. Rem. &

1910.) Bal. Code, ş 1752.

1. MUNICIPAL CORPORATIONS (636*)-VIOLA. The burning of the store building at Ton

TION OF ORDINANCE-JURISDICTION OF JUSasket caused a considerable loss, estimated TICE OF THE PEACE--STATUTES. by the appellants at $10.000. It is urged

Under Rem. & Bal. Code, $ 77354, mak. that this should be charged to the respond- misdemeanor, prosecuted in the name

ing the violation of any municipal ordinance a

ot the ent because it had failed to keep the prop-state, a justice of the peace has jurisdiction erty insured. But we think the appellants over criminal prosecutions for the violation of are in no position to urge this claim under ordinances of a city of the fourth class. not. the circumstances shown here, even were it | 4683 (Pierce's Code, 8 3071), as amended by

withstanding Ballinger's Ann. Codes & St. $ a valid claim under any circumstances. By 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

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