appearance in the justice court, and to hold took that Mellor, "if held for trial, will apherself amenable only to the orders and pear and render herself in execution of said processes of that court; and hence Mel- orders"-let it be conceded orders of the lor's alleged failure to appear in the district justice court. But the order holding Mellor court for arraignment was not a default for trial and requiring her to appear and or breach within the terms of the bond. answer in the district court is an order of While this bond, let it be conceded, is in some the justice court, and one as to which the respects ambiguous, and as a form is not defendants promised and undertook Mellor to be commended, still if from its language would hold herself amenable. It is not by the intent of the parties may be ascertained a strict, but only by a strained, constructo obligate the defendants for Mellor's appearance in the district court, then ought they to be held liable for such a breach? The statute (Comp. Laws 1907, § 4988) provides that: tion, that the bond can be given any other meaning. Thus, when the information was filed in the district court and an order there made requiring Mellor to appear for arraignment, and when she failed to appear, she not only made default of the district court's order, but also of the justice's order holding her for trial and requiring her to appear in "If the offense is bailable, the defendant may be admitted to bail: Before conviction-(1) For his appearance before the magistrate on the examination of the charge, before being held to answer; (2) to appear at the court to which the district court, and there answer the the magistrate shall be required to return the charge. complaint, upon the defendant being held to [7, 8] It undoubtedly is the rule that an answer after examination; (3) after information filed or indictment found, either before war- order or judgment of forfeiture is a prerant is issued for his arrest or upon any order requisite to the maintenance of an action on of the court committing him or enlarging the a recognizance or bail bond, and must be amount of bail, or upon his being surrendered by his bail to answer the information or indict- alleged and proved. It is alleged that Melment in the court in which it is filed or found,lor failed to appear for arraignment, and that or to which it may have been transferred for on the day fixed for the arraignment and uptrial." on her failure to appear "the court duly and lawfully declared said bond forfeited," and directed the district attorney to institute proceedings to collect the forfeiture. It is contended that these allegations were insufficient to show that a proper order or judgment of stated we think they are sufficient. We thus are of the opinion that the demurrer was properly overruled. Under the familiar rule that sureties are favorites of the law, the liability of these defendants by implication or presumption may not be extended beyond the terms of their undertaking and contract. While, as is seen, the bond is labeled "bail bond pending forfeiture was made. For reasons presently examination," yet, because of the statute and of the language in the body of the bond respecting the defendants' promises and undertakings, it is apparent that the bond was Questions are raised as to evidence. The intended to be a continuing bond, and that state put in evidence the transcript of the the defendants not only bound themselves for justice's record in the case of State v. MelMellor's appearance before the magistrate on lor, transmitted to the district court on the the examination, but also for her appear-22d of April, 1913, which, among other things, ance in the district court if she be held to an- showed a verified complaint filed before the swer after examination. By their own lan- justice charging Mellor with selling, without guage they undertook and promised that a license, intoxicating liquors in Salt Lake Mellor: (1) "Will appear and answer the county, the bail bond sued on, the preliminary charge above mentioned before said justice examination before the Justice and binding or in whatever court it may be prosecut- Mellor over to the district court and holding ed;" (2) "will at all times hold herself her to there appear and answer the charge, amenable to the orders and process of said the information filed in the district court by justice court;" (3) "if held for trial will ap- the district attorney on the 29th of May, pear and render herself in execution of said 1913, the order made by the district court orders and process and not depart without requiring Mellor to appear for arraignment leave, or until discharged according to law;" on the 11th, and minutes of the court made and (4) "if she fail to perform either of the on the 11th that "this being the time hereconditions we will pay," etc. From this lan- tofore fixed for the arraignment of the deguage it is argued that the defendants un- fendant herein (State of Utah v. Mellor), the dertook that Mellor would hold herself ame-district attorney being present, and neither nable only to the "orders and process of the the defendant nor her attorney being present, justice court"; that no default of any such on motion of the district attorney it is ororder or process is alleged, and that the de- dered that the bond of the defendant be, and fault which is alleged-failure to appear for the same is, hereby declared forfeited, and arraignment in the district court-constitut-the district attorney is directed to bring suit es a default of an order of the district court for the recovery of said bond." It is claimed and not of the justice court, and hence such that though the allegation of forfeiture be default is not within the terms of the bond. held sufficient, yet the evidence does not show The defendants, however, expressly under- a sufficient judgment or order of forfeiture. This, because of the statute (Comp. Laws Jing; that she and her counsel were at no time 1907, § 5007), which provides: during any of the proceedings absent from "If, without sufficient excuse, the defendant Salt Lake City; that both had telephones neglects to appear for arraignment or for trial and by such and other means could readily or judgment, or upon any other occasion when have been notified of the filing of the inforhis presence in court may be lawfully required.mation and of the order requiring Mellor to or to surrender himself in execution of the judgment, the court must direct the fact to be appear for arraignment; that upon the filing entered upon its minutes, and the undertaking of an information and fixing a day for a of bail, or the money deposited instead of bail, defendant's arraignment it had been the longas the case may be, shall thereupon be declared forfeited. But if at any time before the final established custom and practice of the court adjournment of the court, the defendant or his to notify the defendant or his counsel of the bail appears and satisfactorily excuse his neg-day so fixed, but no notice of the filing of lect, the court may direct the forfeiture of the the information nor of fixing the day for undertaking or the deposit to be discharged upon such terms as may be just." the arraignment was given Mellor or her counsel, or either of the defendants, and [9] By reason of the statute it is argued that none had notice or knowledge whatever that a good order or judgment of forfeiture of the filing of the information nor of the requires a recital of facts in the minutes making of the order until the commencement showing that Mellor "without sufficient ex- of this action, and that Mellor, at all times, cuse" neglected to appear; and as the proved was ready and willing to appear in the disorder contains no such recital, no action can trict court whenever her appearance was rebe founded upon it. The statute, undoubted-quired, and failed to appear solely for the ly, requires the fact to be entered in the reason that she and her counsel both were minutes that the defendant failed or neglect- without notice or knowledge that she was reed to appear, etc., and that the bond was quired to appear. But it was indisputably declared forfeited. But we do not think shown that after this suit was commenced, that either the ultimate or evidentiary fact and while it was pending, Mellor and these that such failure or neglect was "without defendants, in pursuance of section 5007, apsufficient excuse" was also required to be peared before the criminal division of the entered in the minutes. State v. Austin, 141 court, and on motion and by affidavits upon Mo. 481, 43 S. W. 165; People v. Bennett, 136 all of the grounds of excusable neglect set N. Y. 482, 32 N. E. 1044; McGuire v. State, forth in the answer herein, asked that the 124 Ind. 536, 23 N. E. 85, 25 N. E. 11: Banta order or judgment of forfeiture be vacated, v. People, 53 Ill. 434; People v. Tidmarsh, which motion, upon a hearing had before 113 Ill. App. 153. That a nonappearance is that court, was before the trial of this acinexcusable could, so far as the state's show-tion denied. Now, on the trial herein, the ing, be deduced in most instances only from defendants offered evidence in support of the the defendant's failure or neglect to appear. Whether such failure or neglect is excusable is something resting peculiarly within the knowledge of the defendant and not of the state; hence the provision of the statute, that before the final adjournment of the court the defendant or his bondsmen may appear and satisfactorily excuse the neglect and thus cause the forfeiture to be vacated. allegations of their answer, which, upon objections of the state, was refused. Complaint is made of the ruling. It evidently was made on the theory that the record of the forfeiture of the recognizance was conclusive evidence of the breach and could not be impeached by extrinsic evidence; and, further, that the matters so set up in the answer and offered to be proved were determined and [10] The statute requires an information to adjudicated on the motion heretofore referred be filed within 30 days after a defendant to. We think the ruling right. State v. Hindhas been examined and committed. The man, 159 Ind. 586, 65 N. E. 911; People v. record of the case of State of Utah v. Mel- Wolf, 16 Cal. 385; McNamara v. People, 183 lor, put in evidence by the plaintiff, shows Ill. 164, 55 N. E. 625; State v. Hines, 37 Okl. that the information was not filed within that 198, 131 Pac. 688, Ann. Cas. 1915B, 431. time. For this reason it is contended that Thus, whatever the truth may be as to the the court, upon the filing of the information, matters set up in the answer, or the legal was without power to order Mellor's appear-effect of them, was not open to further litigaance for arraignment, and hence that the order of forfeiture is of no effect. Such failure of the district attorney cannot aid the defendants in this, a collateral proceeding. State v. Lagoni, supra. [11] The defendants, by their answer, with great particularity, averred that Mellor at all times was a resident of Salt Lake City, and resided within four blocks of the building where the district court was held; that she had counsel of record who also maintain tion in this proceeding. Though it should be said that the defendants were not conclusively bound by the judgment or order of forfeiture itself, they certainly were bound by the adjudication made on their own motion to set the judgment or order aside, and hence were estopped from assailing it in this, a collateral proceeding. The order, therefore, is that the judgment of the court below be affirmed, with costs. MCCARTY, J. (dissenting). I think the (No. 2840.) (48 Utah, 598) (Supreme Court of Utah. Oct. 5, 1916. Rehearing Denied Nov. 23, 1916.) -court, under the facts and circumstances dis- BROADBENT v. DENVER & R. G. RY. CO. closed by the record, abused its discretion in refusing to set aside the forfeiture. I am also of the opinion that we are not precluded by any recognized or known rule of law of 1. Appeal and Error 150(1) RIGHT OF this jurisdiction from considering the question. REVIEW-PERSONS ENTITLED INTEREST IN [Ed. Note. For other cases, see Appeal and 2. ATTORNEY AND CLIENT 183-ATTORNEY'S Under Comp. Laws 1907, § 135, giving an attorney's lien "from the commencement of an action or the service of an answer containing a counterclaim," which lien "cannot be affected by any settlement between the parties before or after judgment," an attorney has a lien on a cause of action only "from the commencement of an action," etc., as stated in the statute. Client, Cent. Dig. § 385; Dec. Dig. 183.] [Ed. Note.-For other cases, see Attorney and 3. APPEAL AND ERROR 1064(1)—HARMLESS ERROR-INSTRUCTIONS. Where claims against a railroad, which The only theory upon which the claim can plaintiff claimed were assigned to him to sue, be maintained that appellants are precluded were assigned to another who sued the railroad, and estopped from assailing the order over-which settled with the subsequent assignee, takruling the motion to set aside the forfeiture against plaintiff's demands, and thereafter plaining an indemnity bond holding it harmless is that the order is, in contemplation of law, tiff sued the railroad and recovered on the claims a judgment from which an appeal could be no more than the settlement, plaintiff was not taken. Our statute defines a judgment as the ground that any further litigation of the entitled to have defendant's appeal dismissed on "a final determination of the rights of parties claims by defendant involved merely a question in actions or proceedings." Comp. Laws of whether plaintiff or the subsequent assignee 1907, 3183. Clearly neither the for- was the rightful owner, and hence defendant was no longer the real party in interest. feiture nor the order overruling the motion to set aside was "a final determination of the rights" of either the appellants or the state in this matter. If either of these orders has, or the two combined, have the force and effect of a final judgment or order, and such is the logic of the prevailing opinion, as I construe it, then it necessarily follows that when the order denying appellants' motion to set aside the forfeiture was made the state was entitled to have an execution issued and sufficient of appellants' property not exempt from execution levied upon and sold to satisfy-pay off-the judgment of forfeiture, and the bringing of the suit on the bond was a vain and useless thing. No such doctrine is contended for by the state or expressly announced in the opinion, but the logic of the opinion and the conclusions therein announced seem to me to lead to such a result; otherwise sureties on bonds of the kind here involved are denied their constitutional right to have orders forfeiting such bonds reviewed and considered on appeal. Suppose, for illustration, appellants had appealed to this court from the order denying their motion to set aside the forfeiture only, and the state had moved to dismiss the appeal on the ground that it was not taken from a final judgment or order, I do not think it is even problematical respecting the position this court would have taken. Under such circumstances we would, in all probability, have dismissed the appeal, and in doing so invited appellants' attention to the fact that the order of forfeiture is in no sense a final judgment or order, that their liability or nonliability on the bond had not yet been judicially determined, and hence there was nothing upon which to base an appeal. For the reasons stated, I am of the opinion that the judgment of the lower court should be reversed, with directions to that court to grant a new trial. An instruction that an attorney's lien, relied on by plaintiff, attached upon employment rather than upon bringing of action by the attorney claiming the lien as specified in Comp. Laws 1907, 135, was not prejudicial to defendant, where the settlement of the cause of action by defendant, with notice of and in disregard of such lien, took place after action had been commenced by the attorney. 1064(1); CONTENTS [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 4219; Dec. Dig. Trial, Cent. Dig. §§ 475, 528, 553.] 4. APPEAL AND ERROR ~544(1) OF RECORD-DENIAL OF CHANGE OF VENUE. Under Comp. Laws 1907, § 3283, as to what is deemed excepted to without a bill of exceptions, and Laws 1911, c. 94, as to how the judgIment roll is made up, denial of motion for change of venue will not be considered on appeal unless made to appear by bill of exceptions; such ruling not being of the judgment roll without a bill. [Ed. Note.-For other cases, see Appeal and 5. ATTORNEY AND CLIENT 20-APPEARING Where claims against a railroad, which plaintiff claimed were assigned to him to sue, were assigned to another who sued the railroad, which, with knowledge of plaintiff's claim, settled with the subsequent assignee, taking an indemnity bond holding it harmless against plaintiff's demands, the attorney for the subsequent assignee had a right to appear for the railroad in the action against it by plaintiff, the trial chiefly involving the issue of whether plaintiff or such assignee had the better title, since there For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 160 P.-75 by the attorney did not appear on both sides of fee of 50 per cent. of the amount recovered an adverse proceeding or take antagonistic positions. by settlement or judgment, and who, on the claims so assigned, commenced an action against the defendant in June, 1913. The plaintiff, through his counsel, also commenced an action in September, 1913, on the claims assigned to him. In November, 1914. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 27, 29; Dec. Dig. 20.] 6. EVIDENCE 220(1)-ADMISSIONS-ACQUIESCENCE STATEMENTS IN PRESENCE OF PARTY. Where plaintiff's rights rested on parol, tes- the defendant, with knowledge and notice of timony of things said and done in his presence respecting the assignment to him of the claims sued on was properly received, either as direct evidence of the fact or as direct or indirect admissions of a fact. the alleged prior assignments to the plaintiff and of the pendency of his action thereon, settled with the subsequent or second assignee, including the claims assigned to the plaintiff, and took from him a release and [Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 771, 782-785; Dec. Dig. discharge, and also an indemnity bond hold220(1).] ing the defendant harmless against demands -REPETITION. 7. TRIAL 267(1)-INSTRUCTIONS-REQUEST of the plaintiff. The plaintiff thereafter brought his case on for trial as though no settlement had been made. Striking from a requested instruction matter which is but repetition or restatement of other matter therein is not error. The defendant, among other things, pleaded [Ed. Note. For other cases, see Trial, Cent. the release and settlement in satisfaction and Dig. 88 668-671; Dec. Dig. 267(1).] Appeal from District Court, Wasatch County; A. B. Morgan, Judge. Action by Sylvester Broadbent against the Denver & Rio Grande Railway Company. From a judgment, both parties appeal. Affirmed on both appeals. W. D. Riter, C. L. Olson, and Thos. Marioneaux, all of Salt Lake City, for appellant. E. A. Walton, of Salt Lake City, and A. C. Hatch, of Heber, for respondent. STRAUP, C. J. The plaintiff and twelve or more other sheep owners at or near Heber City claimed damages against the defendant by reason of its alleged failure or neglect to provide cars for the transportation of sheep to Eastern markets. He alleged that ten of them had assigned their claims to him. These he set forth in his complaint in separate counts. He dismissed as to six. We are therefore concerned only with four. A verdict was rendered in plaintiff's favor on two and in favor of the defendant on two. The defendant appeals, and the plaintiff cross-appeals. bar. The plaintiff replied that the subsequent assignments were made with knowledge of the prior assignments, and that the settlement was made by the defendant with knowledge and notice thereof and of plaintiff's alleged ownership of the four claims and of the pendency of his action, and that such settlement was subject thereto and to an attorney's lien for services rendered in the action brought by plaintiff. The attorney representing the second assignee appeared at the trial of plaintiff's case, and, against his objection, represented the defendant. [1] Since the plaintiff, on the two claims upon which he prevailed, recovered no more than the settlement (and as to one less than the settlement), the plaintiff contends that any future prosecution of them by the defendant involves merely a question of whether the plaintiff or the second assignee is the rightful holder of the claims, and hence the defendant no longer is the real party in interest. Upon that ground a motion is made by the plaintiff to dismiss the defendant's appeal. For reasons presently to be stated. and in connection with views to be expressed upon another question, we think the motion should be overruled. The loss occurred in the fall of 1910. The two claims on which the plaintiff recovered were assigned to him in writing in February, 1911. He contends the other two were Evidence was given by the plaintiff to supassigned to him orally and by the assignors port his contentions that two of the claims turning over papers to him respecting the were assigned to him in writing and two claims and directing him to prosecute them to orally and by the assignors' turning papers judgment. As contended by the plaintiff, he, over to him and directing him to prosecute in pursuance of the assignments, and with them to judgment, and that he, with the the knowledge and consent of the assignors, knowledge and consent of the assignors, ememployed counsel to prosecute the claims, ployed counsel at an agreed price of 10 per agreeing to pay him for his services 10 per cent. of the claims at all events and 40 per cent. of the claims at all events and 40 per cent. contingent on the amount of recovery. cent. of the amount recovered, and incurred The defendant gave evidence to show that $30 or $40 expenses in looking up evidence the assignments were made on condition that and otherwise spending time in looking after the terms of employment of the attorney the claims. In December, 1912, the four as- should be satisfactory to the assignors, and signors of the plaintiff, together with other that the terms made by plaintiff were not claimants, assigned their claims to another satisfactory and not agreed to, and that aftwho employed other counsel on a contingenter the alleged assignments to the plaintiff, and before the assignments to the second he commenced it, then, indisputably, his atassignee, the plaintiff and his attorney re- torney, if employed with authority upon an leased the assignors from all obligations and agreed compensation, had a lien on the cause consented to the second assignments. That of action which could not be affected by setwas denied by the plaintiff and his attorney; tlement, either before or after judgment, the attorney testifying that his transactions without the attorney's consent or release. were had and his employment entered into Since, therefore, the court bound the jury entirely with the plaintiff as the assignee before finding anything for the plaintiff to of the claimants, and that he looked alone find that absolute and complete assignments to him for directions and instructions in the had been made to him, that they had not premises. been released, and that neither he nor his counsel had consented to the subsequent assignments, and that plaintiff's attorney was employed with authority and consent of the assignors, and since, without dispute, and upon the stipulation of the parties, the settlement was made after the plaintiff had commenced his action and with knowledge and notice of his claimed assignments, and the pendency of his action and his attorney's appearance in the case, the charge that the plaintiff's attorney in effect had a lien before the commencement of plaintiff's action could not and did not do any harm. With respect to these contentions the court charged that, unless absolute and complete assignments were made to the plaintiff, he could not recover anything, nor, though assignments were made, if the assignors thereafter were released, nor if the assignments were made on condition that the terms of employment of plaintiff's counsel were to be satisfactory to the assignors and that they had not agreed nor assented to them. The court also charged that, if the assignors authorized the plaintiff to employ counsel to prosecute the claims assigned to plaintiff, and that counsel was employed, "then you are instructed that, as to any cause of action, said A. C. Hatch [plaintiff's counsel] would have a lien thereon for the amount of his agreed compensation," and that in such event the plaintiff's assignors had not the right to reassign the causes of action so as to release the attorney's lien, and that the assignors thereafter could not settle with the defendant so as to release it from a liability to pay the agreed compensation of the attorney unless he himself released it or assented to the subsequent assignments. Complaint is made of what the court said on the question of an attorney's lien. Something is said on questions of laches and estoppels on behalf of the plaintiff and his attorney because of their delay until September, 1913, before commencing an action. Such matters are not pleaded nor did the defendant ask to go to the jury on them. We thus as to that have only argument, but neither issues nor findings. [4] So, too, is it argued that the court erred in denying the defendant's motion for a change of venue. There is not anything made to appear by the bill of exceptions, the only proper record to show such matters, that such a motion or ruling was made, or that any proceedings were had respecting such a question. The defendant contends that they are of the judgment roll without a bill. Under the statute (Comp. Laws 1907, $ 3283; Laws 1911, p. 136) it is clear that they are not. [2] It is urged that it is not in accordance with the statute (Comp. Laws 1907, § 135) which gives an attorney's lien "from the commencement of an action," or the service of an answer containing a counterclaim, and which "cannot be affected by any settlement [5] Now, as to plaintiff's cross-appeal inbetween the parties before or after judg-volving the two claims upon which the dement." We think the contention well found- fendant prevailed: Plaintiff says the attored. As the court put it, if the attorney, with authority, was employed in the case to prosecute the action, that gave him a lien for his agreed compensation. But the statute declaring when an attorney has a lien, and, when it attaches, declares it to be "from the commencement of the action." So in such particular the jury were misdirected. ney for the subsequent assignee had no right to appear for the defendant in plaintiff's cause for the reason that the law does not tolerate the same counsel to appear on both sides of an adverse proceeding and where he is required to take antagonistic positions. The principle invoked may be conceded. But the defendant here joined the issue as to [3] But wherein did that harm the de- liability and plaintiff's right to sue on the fendant? Had the settlement been made be- claims, and also tendered the issue of setfore the plaintiff commenced his action, or tlement and payment. The defendant itself were the evidence as to that in conflict, then, on none took inconsistent positions, and, as of course, such a charge would be injurious. to all, was adverse and antagonistic to the Here, however, it is indisputably shown that plaintiff. Whatever legal effect the settlethe settlement was made after the plaintiff | ment had as to the issue of liability and the had commenced his action, and with knowl- amount of recovery is another thing. The edge and notice of the prior claimed assign- assignees had a common interest in estabments to the plaintiff and of the pendency |lishing a liability against the defendant. In of his action and of his attorney's appearance all other respects they were hostile to each in the cause. All that is stipulated. Thus, other. The trial chiefly involved the quesif the plaintiff rightfully had a cause when tion of whether the plaintiff, or the subse |