COMMERICAL FISHERIES CORPORATION, by and thru its President, ARTHUR S. FARHAT, Petitioner, v. PUK YANG FISHERIES, CO. LTD., by and thru its Attorneys-In-Fact, H.S. YANG, et al., Respondents.
APPEAL FROM THE RULING OF THE CHAMBERS JUSTICE GRANTING A WRIT OF PROHIBITION.
Heard: November 7, 1988. Decided: December 30, 1988.
1. In prohibition proceedings, it is required that an application for the writ allege that the correspondent judge acted without jurisdiction or that he exceeded it, or, that he proceeded by wrong rules, even though the judge has jurisdiction.
2. The burden of proof rests on the party who alleges a fact.
3. The procedure governing a pre-trial conference must be adhered to strictly.
4. When the rules governing a pre-trial conference are invoked, prior to the hearing, each lawyer or attorney must prepare and submit at the pre-trial conference a memorandum indicating the matters agreed upon and the factual and legal contentions to be made on behalf of his client.
5. After the pre-conference is held, the law provides that the trial court must make a pre-trial order in which it recites the conclusion or action taken at the conference, including, but not restricted to, a statement of the issues for trial, limiting them to those not disposed of by admissions or agreements of the attorney or counsel.
6. When a pre-trial order is prepared, it must be signed by the court and attorneys and, when entered, it becomes part of the record, superseding the pleadings and controls the subsequent course of the action.
7. A pre-trial conference not conducted in keeping with law has no binding effect.
8. The purpose of the writ of prohibition is to order the respondent to refrain from further pursuing a judicial action or proceeding specified in the writ.
9. Prohibition is a restraining process, whereas a writ of error is specifically for the purpose of reviewing a judgment, decree, or decision of an inferior court which has not been reviewed on appeal and which has not been completely executed.
10. The Civil Procedure Law inhibits the issuance of remedial writs, including prohibition, as a matter of right, or where it clearly appears that the petition is devoid of legal merits and is made solely for the purpose of delay.
11. When a party has confessed judgment, and the trial court, pursuant to the confession, has entered final judgment, and the one who has confessed judgment commences to comply with said judgment, prohibition is no longer available to such a party.
12. Prevailing attorney costs are remedial in their nature and should therefore be liberally construed
13. In interpreting a statute, a court must look to the act itself to determine the objective of the legislature.
14. In order to ascertain the intended object of a statute, the occasion and the necessity of its enactment, and, in some cases, public policy are given serious consideration.
15. An important rule of construction is that statutes are to be construed as they were intended to be understood when they were passed; they are to be read in the light of the attendant circumstances existing at the time of their enactment system in one spirit and policy.
16. It is clear that the intent of the Legislature in passing the attorney’s fees statute was to compensate the successful or prevailing party for the imposition upon him by the losing party the need of retaining the services of an attorney in the first place.
17. There are certain statutory preconditions for awarding prevailing attorney costs: There must be a de novo trial, the party desiring the costs must be successful, it is limited to civil actions, and the party must have been represented by a counsel.
18. One public policy in favor of the prevailing attorney’s fees statute is that it discourages unmeritorious litigations.
19. The statute and its requirements relating to deferred payment of money judgment require the debtor, besides paying 25% of the principal, to enter into a stipulation and to file a bond for the balance. The provision requiring filing a bond is only applicable when and where the debtor is insolvent.
20. The first duty of a lawyer to his client is to advise him against untenable causes.
21. When a lawyer undertakes the defense of a client, the lawyer should always endeavor to obtain full knowledge of his client’s cause before advising the client.
22. A lawyer is duty bound to give only candid opinion of the merits and probable result of pending contemplated litigation to his or her client.
23. It is unprofessional for a lawyer to advise the institution or, for that matter, the continuation of an unmeritorious suit.
24. The Legislature did not and could not have intended that prevailing attorney fees be limited to a bare minimum of $50.00, especially when suits and litigations have become time consuming, highly complex and expensive.
Petitioner was defendant in an action of debt by attachment in the lower court. Petitioner filed a petition for a writ of prohibition before the Chambers Justice, contending that at a pretrial conference held in the lower court, the parties had reached an unwritten understanding which induced petitioner to confess judgment, on which basis the trial judge entered final judgment, but that the judge had then reneged on the understanding and ordered execution of her judgment. Petitioner also sought relief regarding the award of prevailing attorney’s fees, which the petitioner argued significantly exceed the amount provided for under the statutes. The Chambers Justice issued the writ of prohibition. On appeal to the Supreme Court, the Court held that when a party shall have confessed judgment, and pursuant to that judgment, the trial court entered a final judgment, and the judgment confessor begins to comply with the final judgment, prohibition is not longer available to that party. The Court also held that because litigation is time consuming, highly complex and expensive, it was not the intent of the Legislature to authorize the de minimis sum of $50 as prevailing attorney’s fees, since the object of the statute was to discourage unmeritorious suits. Reversed.
Alfred B. Flomo for appellant. Toye C. Bernard and E. Winfred Smallwood for appellee.
MR. JUSTICE KPOMAKPOR, delivered the opinion of the Court.
Commercial Fishers Corporation, petitioner in these prohibition proceedings, was defendant in the court below, where an action of debt by attachment was instituted by plaintiff PUK Yang Fisheries Corporation, Ltd., a Korean fishing company based in Las Palmas. The defendant filed an answer with a corresponding bond in the amount of $950,208.00, its assets comprising of two cold storage facilities and two buildings, with a value of about $1.4 million dollars.
According to the record certified to this Court, particularly the petition for prohibition, it appears that a would-be pre-trial conference was held in the chambers of the co-respondent debt court judge with legal counsel of the parties, which resulted in an understanding allegedly reached and approved by the judge. The oral understanding is said to have included the following points:
1. That defendant agreed to pay 25% of his indebtedness and the balance to be paid in 12 monthly installments.
2. That the co-respondent judge would waive the 6% interest on the judgment when confessed by defendant in favor of plaintiff and that interest be charged and paid on the unpaid balance.
3. That the garnishee of defendant, the Agriculture and Cooperative Development Bank, which was attached as defendant’s garnishee be cited by the co-respondent judge and authorized to pay plaintiff on behalf of defendant the 25% herein mentioned.
4. That based upon the mutual understanding herein men-tioned, defendant confessed judgment, but that, instead of the judge abiding by that understanding, she reneged on it, rendered final judgment and ordered a bill of costs and an execution issued against defendant, now petitioner.
At this juncture, defendant moved the court for relief from this judgment. When the court denied the motion, the defendant, upon petition, obtained an alternative writ of prohibition from our colleague, Mr Justice Junius, then presiding in chambers. Mr. Justice Azango who succeeded Mr. Justice Junius by assignment heard the alternative writ and ordered issued the peremptory writ. The matter is therefore before us on appeal from the ruling of Mr. Justice Azango.
The core of the petition is that during the pre-trial conference presided over by the trial judge, the parties reached an unwritten understanding which induced petitioner to confess judgment and that it was upon the basis of which the trial judge rendered final judgment; however, in utter disregard of the said mutual understanding duly reached and stipulated by the parties, the judge chose to enforce her final judgment. Petitioner concludes that this breach is a serious error committed by the judge which can only be cured by prohibition.
The respondents, before denying the allegations of the petition in specific terms, employed the usual and familiar platitude: “1. Respondents submit that the purported petition is baseless, misleading, unmeritorious and filed for the mere purpose of delaying, baffling and frustration of justice in violation of the provision of the New Judiciary Law. . . .”
In substance, the respondent not only denied the truthfulness of the allegations as contained in the twenty-count petition, but also stressed that the issues it raised are reviewable only by a writ of error, certiorari or a regular appeal, but definitely not by a writ of prohibition.
Respondent also contended further that the $10,933.80 paid as plaintiff’s prevailing cost was applied properly to said prevailing cost and not to petitioner’s indebtedness. Morever, respondent denied that the parties did agree to have the 75% balance of the debt paid or settled in an 18-month period. Respondent finally contended that the appropriate remedy available to petitioner, if any, for the alleged failure of the corespondent judge to implement a verbal mandate of Mr. Justice Junius to the effect that the trial judge “permit the above-named petitioner in the above entitled cause of action to pay 25% of the amount involved and comply as per the law provides. . .,” was an “information” and not prohibition.
In prohibition proceedings, it is required that an application for the writ allege that the co-respondent judge acted without jurisdiction or that he exceeded it; or that he proceeded by wrong rules, though having jurisdiction. In the case at bar, petitioner has not offered a scintilla of evidence in support of his allegations that a pre-trial conference was held as prescribed by the Civil Procedure code. Although the court in which the debt action was filed is a court of record, the petitioner patently failed to establish the fact that such a conference was convened in the first place, or the existence of the mutual understanding which he allegedly relied upon and confessed judgment.
While the respondent has not denied outright that some understanding may have been proposed, he did, however, deny the main averments and conclusions of the petition. While it is true, that, as a general rule, fraud and misrepresentations vitiate all transactions, but in the absence of any evidence presented before us to support the claim of the petitioner, that there was a pre-trial conference, and that the trial judge had lured him into confessing judgment, believing that she would give effect to the alleged understanding reached by the parties, we fail to see how we can accept these mere allegations as facts.
The petitioner has raised several issues in his brief, relevant among them are:
1. May the trial court auction the attached real property of the judgment debtor after final judgment had been rendered and pursuant to an execution duly issued and served, even though said property is mortgaged to a third party?
2. May a judge of a subordinate court disobey the orders of a Chambers Justice with impunity?
3. May a trial judge expose to public auction for the second and third times real property attached in a debt action, when the judgment debtor has paid 25% of the principal as well as costs of court, where the previous highest bidders failed to tender payment in keeping with their bids?
4. May a plaintiff in a debt action claim 2% of the amount owed and not a flat $50.00 as prevailing costs?
In the opinion of this Court, however, there are only two relevant and basic issues presented by the pleadings, the briefs and the arguments of the parties:
1. Did the trial judge have jurisdiction over the subject matter, or, having jurisdiction, did she exceed said jurisdiction or proceed by wrong rules?
2. Was there a pre-trial conference and a corresponding order of court resulting from said conference?
We will resolve these two issues in the reverse order. The petitioner contended in his petition and argued that, notwithstanding the oral understanding reached by the parties and approved by the trial judge, the judge subsequently rescinded, with the cooperation of the plaintiff, all the points previously concluded and agreed upon by the parties.
Furthermore, the petitioner argued that after setting aside her approval of their understanding as herein mentioned, he filed a motion in relief from judgment which was heard and denied. After the denial of this motion, the petitioner contends, the trial judge attempted to enforce her judgment by putting up the attached property for public auction and that when the first bidders failed to tender the amounts in keeping with their bids, the judge again issued a second and third order that new bids be invited.
Taking the second issue first, whether there was a pre-trial conference and a corresponding order of court resulting from the said conference, the petitioner failed to carry the burden of establishing the allegations contained in its petition that there was a pre-trial conference. “The burden of proof rests on the party who alleges a fact. . . .” Civil Procedure Law, Rev. Code 1: 25.5. We agree that chapter 12 of our Civil Procedure Law does provide for a pre-trial conference, for the purpose of simplicity of the issues; obtaining admissions in order to avoid unnecessary proof; limitation of the number of witnesses, among others. Civil Procedure Law, Rev. Code 1:12.1. However, the procedure governing a pre-trial conference must be adhered to strictly. Section 12.2 of the Civil Procedure Law allows ten days as the time for the conference after the service of the notice of the hearing. Also, prior to the hearing, each lawyer or attorney must prepare and submit at the pretrial conference a memorandum indicating the matters agreed upon and the factual and legal contentions to be made on behalf of his client, Civil Procedure Law, Rev. Code 1:12.3.
After the conference is held the Civil Procedure Law further provides that the trial court must make a pre-trial order in which it recites the conclusion or action taken at the conference including, but not restricted to, a statement of the issues for trial limiting them to those not disposed of by admissions or agreements of the attorney or counsel. The order is then signed by the court and attorneys, and when entered, it becomes part of the record, superseding the pleadings and controls the subsequent course of the action. Civil Procedure Law, Rev. Code 1:12.5.
During the argument before this bar, counsel for petitioner was asked whether the alleged pre-trial conference and the subsequent order of the were all made a matter of record, the debt court being a court of record. His answer was a soft but firm “no your honors.” If anything like a pre-trial conference was held, it was not conducted in keeping with law, and consequently we hold that it had no binding effect. “What is not legally done, is not done at all,” the old maxim says. As we have already mentioned in this opinion, the respondent vehemently denied that a pre-trial conference was either held or that the judge issued any order directing the parties to perform this or that act. Under the circumstances we have narrated, we have no option but to answer the question posed by the first issue in the negative.
On the question whether the trial judge had jurisdiction over the subject matter, or, having jurisdiction, if she exceeded it by proceeding by wrong rules, the Civil Procedure Law provides that the purpose of the writ of prohibition is to order the respondent to refrain from further pursuing a judicial action or proceeding specified therein. Civil Procedure Law, Rev. Code 1:16.21 (3). The Civil Procedure Law also inhibits the issuance of remedial writs, including prohibition, as a matter of right, or where it clearly appears that the petition is devoid of legal merits and is made solely for the purpose of delay. Civil Procedure Law, Rev. Code 1:16.27.
This Court held in Elie J. Haj Brothers v. Dennis, et aL[1971] LRSC 31; , 20 LLR 294, 296 (1971), that “A writ of error is clearly distinguishable. A writ of error is a writ by which the Supreme Court calls up for review a judgment of an inferior court from which an appeal was not announced on rendition of judgment.” The Court added: “Prohibition, therefore, is a restraining process, where a writ of error is specifically for the purpose of reviewing a judgment, decree, or decision of an inferior court which has not been reviewed on appeal and which has not been completely executed.” Id.
The points which constitute the gravamen of the petition, we reiterate, are that the trial judge presided over a pre-trial conference and thereafter, issued an order in keeping with an alleged understanding reached; that based upon said understanding petitioner was enticed into confessing judgment and obligating itself to do several things, including the payment of 25% of the debt owed by petitioner to respondent/appellant and that the balance was to be paid in twelve installments; that the six percent interest on the judgment would be waived, with interest charged only on the balance; that a mandate to the trial judge in which she was ordered to open up the premises to petitioner and have the balance 75% paid by installments had been disobeyed by her; that despite a partial compliance made of the judgment confessed, the co-respondent judge put the attached properties up for auction sale and invited new bids when the first bidders failed to tender the amounts in keeping with their bids, and that the costs of prevailing attorney fee should be $50.00 and not 2% on every $100.00, or $10,933.80 which petitioner has paid in obedience to the judge’s order.
Regarding these issues raised in the petition and argued before us, the respondent strenuously contended that the allegations contained in counts 1 to 20 of the purported petition are issues reviewable only upon a writ of error, certiorari or a regular appeal and not by a writ of prohibition. In the case of Commercial Bank of Liberia v Tip Top Tools, Inc., [1975] LRSC 50; 24 LLR, 397, 408 (1975), this Court, through Chief Justice Pierre, quoting from 23 CYC 699 (1906) said:
“A judgment may be rendered upon confession of the defendant, either in an action regularly commenced against him by the issuance and service of process, in which case the confession may be made by his attorney of record, or without the institution of a suit, upon a confession by defendant in person or by his attorney in fact. It implies something more than a mere admission of a debt to plaintiff; in addition, it is defendant’s consent that a judgment shall be entered against him therefor.”
The Tip Top Tools case and the case at bar are very much similar, except that in the instant case the defendant not only confessed judgment, but complied substantially with the judgment by paying 25% of the principal, as well as the costs of court, before fleeing to this Court on a writ of prohibition. Therefore, the position of the plaintiff, that is appellant herein, is much stranger than that of the plaintiff in Tip Top Tools, supra. The question as to whether the co-respondent judge lacks jurisdiction over the subject matter, or having jurisdiction exceeded or abused it, or proceeded by wrong rules must be answered in the negative, and we so hold. When a party has confessed judgment, and the trial court, pursuant to the confession, entered final judgment, and the one who has confessed judgment commences to comply with said judgment, as in the case at bar, prohibition is no longer available to such a party.
Of course, the petitioner eloquently contended that the trial judge proceeded by wrong rules, even though she had jurisdiction, and because of that fact prohibition will lie. Petitioner argued that by disobeying or refusing to carry out the mandate of the Supreme Court, the judge was proceeding by wrong rules. Petitioner relied heavily on §44.22 of the Civil Procedure Law regarding enforcement by execution and its adjuncts. According to the petitioner, the trial judge not only disobeyed the mandate of Messrs. Justices Junius and Azango, but she also violated §44.22. The language of the section is clear and unambiguous and needs no construction. It provides: “Deferred payment of money judgments. A person against whom a judgment or order is enforceable under this sub-chapter may apply to the court at any time after judgment is entered and before judgment is satisfied for leave to pay the money due under the judgment in installments. The court shall grant the application if (a) it is satisfied that the applicant has no assets available for immediate payment; (b) the applicant pays twenty-five percent of the amount due on the judgment immediately; and (c) the applicant files a bond to the effect that he will faithfully comply with the order of the court to pay the judgment within the time specified and that he will pay interest on the unpaid balance at the rate of six percent per year. . . .”
As can be clearly seen from the language of the statute just quoted, petitioner did not qualify to benefit under §44.22, since petitioner had assets and failed to file a bond to the effect that he will faithfully comply with the order of the court to pay the judgment within the time specified. Had petitioner been insolvent, perhaps, his case would have been different.
Another authority cited and relied upon by the petitioner is Boye v. Nelson, [1978] LRSC 33; 27 LLR 174 (1978). Boye deals with a writ of prohibition, as in the instant case, which grew out of an action of ejectment in which the petitioners were never made parties. Notwithstanding, the sheriff sought to enforce the judgment against them. This Court held that prohibition could not lie. Nasser et al. v. The Minister of Justice et al.[1976] LRSC 78; , 25 LLR 382 (1976) is another authority relied upon by petitioner. The petitioners in this case were aliens whom the Justice Ministry sought to deport without giving them an opportunity to be heard. In granting the prohibition, this Court decided that the Minister of Justice is obliged to follow the administrative procedure prescribed by statute. In the instant case, the position of the petitioner is basically different. He was regularly brought under the court’s jurisdiction; he confessed judgment and it was entered in keeping with law; a bill of costs was ordered issued which was taxed by each counsel on both sides and payment was made in substantial compliance with said judgment, thereby leaving nothing to be done by the trial judge from which she can be restrained. The petitioner also cited section §44.43 of the Civil Procedure Law, which concerns sale of mortgaged property, but we are of the opinion that the provision is not applicable. Therefore, the trial judge did not proceed by wrong rules. In fact, the question of the interest of the Agriculture Cooperative Development Bank, the garnishee of the petitioner, is not properly before us. According to the record in this case, this issue was brought before the trial court by way of information, which is still pending before that forum. Even accepting, in arguendo, the contention of petitioner that the Agriculture Cooperative Development Bank has a mortgage on petitioner’s property, and therefore said property could not be levied up and be auctioned in satisfaction of debts owed by petitioner, we are not impressed with that contention. Recourse to the Civil Procedure Law prescribes the rule to be followed in such cases. It states at §7.25: “Prior to the application of the property which has been attached for the satisfaction of a judgment, any interested person may commence a special proceeding against the plaintiff to determine the rights of adverse claimants of the property or debt, by filing a notice of petition with the clerk and serving copies thereof upon all interested parties.”
This Court has held that, relying upon 41 C.J., Mortgages, §591 (1926):
Where a mortgage is regarded only as a security, as it now generally is, the mortgager remains to all intents and purposes the beneficial owner of the estate, and may control, manage, and dispose of it as he wills, so far as concerns all persons except the mortgagee, and subject to the condition that he must do nothing to destroy or impair the mortgagee’s security. He is a freeholder, as regards all the rights and privileges, both civil and political, which the possession of a freehold confers, and cannot be deprived of his title, even after breach of condition, except by a voluntary surrender or conveyance or by a due and regular foreclosure. “See In Re R. F. D. Smallwood, et al.[1942] LRSC 9; , 8 LLR 3, 26 (1942).
In any event, the argument of petitioner, that, in attempting to put up the attached property for auction for the second or third times, the co-respondent judge proceeded by wrong rules and therefore prohibition will lie is not sustained. The fact of the matter is that the execution is upon properties which were put by the petitioner/appellee himself when he filed his attachment bond for the total sum of $950,208.00. He should not be heard now complaining that a third party holds a prior lien.
This bring us to the consideration of the order of the chambers Justice to the trial judge regarding the $10,933.00 paid by petitioner to the respondent as prevailing attorney costs. Our colleague ordered the trial judge to add this amount to the $144,872.85 paid to the respondent/appellant against the indebtedness of petitioner. According to Mr. Justice Azango, the maximum amount for prevailing attorney costs should be $50.00, and no more.
We will now have recourse to the relevant law. The Judiciary Law provides, regarding prevailing attorney’s fees:
(a) Where the judgment recovered is for money only, shall be two dollars for the first one hundred dollars or under and for every additional one hundred dollars or fractional part thereof, two dollars, excluding prepaid costs.
(b) Where the judgment is for the recovery of a chattel or in an action of summary proceedings to recover possession of real property, costs shall be awarded in the same amounts as provided in subdivision (a) based upon the value of the chattel as determined by the judgment or claimed by the adverse party, or upon the amount of rent found or claimed to be due, as the case may be.
(c) Where the judgment is for the recovery of real property or to compel the determination of a claim thereon, or grants equitable relief, costs may be awarded at the discretion of the court of such sums as it deems reasonable.
(d) The costs provided for in this section shall be no event exceeds the sum of $50.00.
As can be seen, subsection “(d)” is clearly not in harmony with those of a-c, to say the least. Consequently, parties have in the past argued for and against subsection (d), that is, those demanding prevailing attorney costs insisting on the application of (a), (b) or (c), depending on the facts and circumstances of the case, and the unsuccessful parties urging the court to apply subsection (d) which limits such fee to only $50,00. The parties in the case at bar are no exception. As we have already stated earlier in this opinion, the petitioner eloquently contended that the subsection to be applied is (d) and not(a), while the respondent strenuously contending that (a), and not (d), should be applied. The Chamber Justice, without elaborating, ruled that the proper subsection to be applied is (d). We disagree with this conclusion. Indeed there is obviously an inconsistency between subsection (a), which provides for $2.00 on the first one hundred dollars; subsection (b), covering actions in real property, which gives the same amount of $2.00 as in (a); subsection (c), covering actions where equitable relief is sought, which leave the costs to be awarded to the sound discretion of the court, on the one hand; and subsection (d) on the other hand, which provides for an amount not exceeding $50.00. As can clearly be seen, the provision of subsection (d) is quite different from those of subsections a-c, the latter being very much similar in many respects.
In our view, prevailing attorney costs are remedial in their nature and should therefore be liberally construed. One thing that should be pointed out here is the fact that there is an apparent palpable defect in subsection (d). A careful reading of the subsection will readily reveal that something important was left out. Among the many, many rules of construction of statutes is one which states that in the case where the apparent object of the Legislature is sought, recourse should be had to the act itself. See, for example, Yancy v. Republic, [1934] LRSC 31; 4 LLR 204(1934). In order to ascertain the intended object of a statute, the occasion and the necessity of the enactment, and, in some cases, public policy are given serious consideration. Roberts v. Roberts, [1942] LRSC 4; 7 LLR 358 (1942). Another important rule of construction is that statutes are to be construed as they were intended to be understood when they were passed; they are to be read in the light of the attendant circumstances existing at the time of their enactment. Brown, et al. v. Republic[1973] LRSC 43; , 22 LLR 121 (1973). One other important rule of construction is the principle of in pari materia, that is, in interpreting the provisions of a statute, all provisions, or sections, relating to the same subject, or provisions, having the same general purpose, are said to be in pari materia. Statutes or provisions in pari material should be read and construed together, as though they constituted one law, or, as in the instant case, one provision. They must be governed by one system, one spirit and policy. See Brown v Doe and Abraham v Cooper, [1972] LRSC 20; 21 LLR 157 (1972). The threshold question to be considered now is what was the intent of the Legislature in enacting § 12.7, Allowance of costs to prevailing parties represented by counsel. The clause introducing subsections ad reads in part: “Costs upon trial, including a trial de novo, shall be awarded to a prevailing party in a civil action only if he has appeared by an attorney or Counsellor of law.” (Our emphasis).
Now, viewing the question before us, in the light of the clause we have just quoted from the statute, it is clear that the intent of the Legislature was to compensate the successful or prevailing party for the imposition upon him by the losing party of the need of retaining the services of an attorney in the first place. Of course, the attorney must appear in court and defend the cause of his client. We reach this conclusion because of the language of the clause introducing the section. The preamble to the section requires the existence of a few things as a precondition for awarding prevailing attorney costs: (i) there must be a de novo trial; (ii) the party desiring the costs must be successful; (iii) it is limited to civil actions; (iv) and the party must have been represented by a counsel. One public policy in favor of the statute is that it discourages unmeritorious litigations. For example, in the instant case, had the petitioner lived up to his obligation by tendering the value of the fish when due and demanded by his creditor, this suit would have been averted. Even after petitioner confessed judgment and paid 25% of the principal, he should have known, since he was represented by a lawyer, that the statute and arrangement relating to deferred payment of money judgment require the debtor, besides paying 25% of the principal, to enter into a stipulation and to file a bond for the balance. Of course, this provision is only applicable when and where the debtor, unlike in the case of the petitioner herein, is insolvent. In other words, the petitioner in the case at bar knew or should have known that it had breached a contract of sale and that so long as it possessed property or assets which had been levied upon, a compromise would have been the most sensible thing to propose, or just confess judgment period. Instead, he chose litigation. Who should then pay for the unnecessary but expensive exercise? The answer is simple, the party who could and should have prevented it, but failed to do so. The first duty of a lawyer to his client is to advise him against untenable causes.
While we salute members of the bar for exerting their best professional effort, having once undertaken the defense of a client, a lawyer should always endeavor to obtain full knowledge of his client’s cause before advising thereon. He is duty bound to give only candid opinion of the merits and probable result of pending contemplated litigation. In this connection, the client should be advised when the controversy will not admit of fair judgment. This advice is necessary in order to avoid or promptly end litigation; it is unprofessional for a lawyer to advise the institution or, for that matter, the continuation of an unmeritorious suit. See Rules for Governing Procedure in the courts and for Regulating The Moral and Ethical Conduct of Lawyers, Rule 8 at 2. (Amended and Revised By Authority, July 1972.) Consequently, our colleague erred when he ruled that the petitioner be credited with the $10,933.00 minus $50.00. The trial judge’s application of this amount to prevailing costs is hereby sustained. In our view, a reasonable and consistent interpretation of § 12 of the New Judiciary Law requires that we reject the contention that the costs of prevailing attorney be limited to $50.00 as contained in subsection (d), in favor of subsection a-c, and we so hold, In fact, apart from the fact that something was omitted in subsection (d), however, if all the subsections are read conjunctively as they should be and construed together, it is obvious that the law makers did not and could not have intended that prevailing attorney fees be limited to a bar minimum of $50.00, especially when suits and litigations have become time consuming, highly complex and expensive.
In his ruling, Justice Azango ordered the trial judge to reopen petitioner’s place, pending the final determination of the matter, because, as he put it, keeping the premises closed would strangulate the economy of this country. It is our view that if anyone is attempting to strangulate the economy, it is without question the petitioner, who took the respondent’s fish and refused to pay.
We are convinced that the petitioner has had his day in court. It is our holding, therefore, that for the reasons stated herein, the ruling of our colleague is reversed; the alternative writ heretofore issued, is discharged, and the peremptory writ denied. The Clerk of this Court is ordered to send a mandate to the court below to resume jurisdiction and enforce her ruling, and in order to mete out transparent justice, the property to be auctioned should be advertised for thirty days, commencing from the date of the reading of this mandate. And it is so ordered.
Petition denied.