
    Alphonse Desmare, ex parte.
    
      On the claimant’s application for Mandamus.
    
    
      The claimant beforesuit executes a power of attorney to one N., wherein, in addition to the power to prosecute his cause of action, he transfers to him one-half of the claim. W. employs an attorney of the court to bring suit in the Court of Claims. While the suit is still pending, the claimant moves to change his attorney. The court allows the motion, but imposes as conditions, 1st, that' the present attorneys of recordbe reimbursed their disbursements ; 2d, that N. have and retain a lien upon the cause of action and upon any judgment which may be recovered to the amount of such contingent fee as it was agreed he should receive for Ms services, or to the amount of any interest assigned to him by the claimant. From this decision the claimant seelcs to appeal, but the court refuses to allow the appeal, upon the ground that the order is not a “ final judgment ” xoilh'm the meaning of the statute. The claimant now applies to the Supreme Court for a mandamus to compel the Court of Claims to allow the appeal. The application is heard ex parte, and a rule nisi refused.
    
    
      Semble, an order of the Court of Claims allowing, on the party’s motion, a substitution of attorney, hut imposing as conditions that the present attorneys he re-imbursed their disbursements, and that an agent, who in fact instituted the suit, hare and retain a lien upon the cause of action, and upon any judgment which may he recovered to the amount of such contingent feo as it was agreed he should receive, or to the amount of any interest which may have been assigned to him by the party before suit, is an order which the Supremo Court will not review or interfere with.
    
      The ’Reporters’ statement of the case:
    On tbe 17th of October, 1873, the claimant presented his petition to the Supreme Court for a writ of mandamus. The facts upon which the writ was asked appear Tally in the argument of his counsel.
    
      
      Mr. T. J. Durant for the relator :
    In bis suit before the Court of Claims, to recover the proceeds of captured and abandoned property, (12 Stat. L., p. 820,) Alphonse Desmare, the claimant, moved to change his attorneys, which the court allowed, but coupled it with the following conditions : “ That payment be first made to the present attorneys of all disbursements made by them in the prosecution of the suit, the same to be allowed and settled by a judge at chambers; that Samuel Y. Niles have and retain a lien upon the cause of action and upon the papers and effects of the claimant, and upon any judgment which may be recovered herein to the amount of such contingent fees and costs as it was agreed by the claimant he should receive for professional services herein, or to the amount of interest in the claim which may have been assigned to him by the claimant.” From this judgment Desmare petitioned for an appeal, which was refused, on the ground that “the order was no final judgment from which an appeal, may be taken.” So far as the judgment allows a change of counsel, Desmare does not complain, but he contends that the conditions annexed to the change are illegal and work Mm an irreparable injury; and, whether the order be interlocutory or final, that he is entitled to a review of it by the United States Supreme Court, and that the judges of the Court of Claims erred in refusing him an appeal. Two views may be taken of this case: First. Had the Court of Claims any judicial power to deny an appeal on the ground it urged ? Second. Admitting that the Court of Claims had the judicial power to decide which of its-judgments were final and which were not, or which were appeal-able and which were not, did it correctly decide this question in this case? We submit the learned judges of the Court of Claims-erred in their determination of both questions. Whether the judgment-complained of by Desmare was a final judgment, from which an appeal could be taken, was a question of law, directly involving the limits of the appellate jurisdiction of the Supreme Court of the United States, of which the Court of Claims should not have approached the solution, for the law had vested no discretion in the j udges thereof to decide it. So, in United States v. Adams, (6 Wall., p. 107,) it is said “this language” (of the Act March 3,1863,12 Stat.L., p. 765, sec. 5) “ implies that taking an appeal is a matter of right, and is something which the party, as distinguished from the court, may do. When the court has rendered its judgment, ‘either party may appeal,’ that is, has the right to appeal, and may exercise that right by his own volition. The Court [of Claims] cannot prevent it, nor is the right dependent upon any judicial discretion.” But admitting, e. g., that the Court of Claims had the judicial power to determine whetherthejudgmentin question was appealable or not, did it correctly solve the question in this case % This gives rise to the following inquiries : Was the judgment a final judgment1? If a final judgment, was it such a final judgment that an appeal would lie to the United States Supreme Court to review it ? Assuming that the Court of Claims, though of limited jurisdiction, could and did properly take cognizance of and decide Desmare's rule to change his counsel, (and of this there is no dispute,) then it must be equally admitted that the court might either allow or refuse the change of counsel. And this judgment of allowance or refusal would be a final judgment, which, if against our client, would be appealable by him; and if in favor of our client, would be appealable by those properly made defendants to the rule. Alphonse Desmare’s right to change his attorneys at any time, before, during, or after the pendency of the suit, with or without cause, with or without paying them, cannot now be denied. His right to do so is absolute. (Pas-dial’s Case, 10 Wall., 496.)
    So far, then, as the judgment touches the change in the attorneys, it is a final judgment. So far as the superseded attorneys were concerned, it being against them, their right to an appeal was perfect; but so far forth as the judgment merely recognized the right to change attorneys, Desmare could not appeal, for it was in his favor. If the Court of Claims, therefore, had restricted their judgment to the only matter actually and properly before them, to wit, the change of attorneys, there would, in all probability, have been no petition for an appeal by either party to the rule, and certainly no application for a mandamus by Desmare.
    But the Court of Claims went much further, and, while admitting the indisputable right of Desmare to change his attorneys, proceeded to clog it with impediments which destroyed it. In doing this, they abused their judicial power, and worked an irreparable injury to Desmare. They converted a judgment in his favor into one against him, and thus gave him the legal right to an appeal, under the act of Congress before quoted.
    
      The judgment on the rule to change attorneys is final, not only because it works an irreparable injury, which cannot be remedied by a final judgment on the merits, and because it determines finally the rights of the parties to the rule and largely deprives Desmare of the benefit of any judgment he may in the end obtain against the United States, but also because the matters and things involved in the exercise of the judicial power over the rule in this case concerned, if not absolute strangers yet parties who were strictly, in the language of the common law, “outsidersThe rule was indisputably the proper instrument of procedure for Desmare to resort to. in his efforts to change his counsel,1 but the real defendants, the United States, had no interest in the rule5 in no way were they affected by the decision upon it. The practice in such cases is well settled .in all the courts; and an acquiescence in such a j udgment by failure to appeal or enjoin is necessarily fatal. (Tidd’s Practice, ed. 1856, p. 478; Alleghany Banlis Appeal, 12 Wr., Pa., 328 ; Smith v. Knowlton, 11 N. Hamp., 191.)
    Such a judgment is not void, baut voidable, and cannot be attacked collaterally. Had we not petitioned for an appeal, we “would have slipped our time to object to the jurisdiction of the court? (The Marshalsea Case, 10 Pep., 76; Beach v. Fulton Banlc, 2 Wendell, 225; Bulvid v. Miller, 4 Paige, 450-473; Lomax v. Pieot, 2 Rand., 247.)
   After considering the foregoing written argument, the Supreme court refused a rule nisi, no opinion being delivered.  