It appears from the record that in the case of John T. Snelson v. W. L. Pickard, on motion of James A. *438Williams, who was the attorney of plaintiff, an order was entered on the 25th day of July, 1894, in the Third District Court, in said case which was then pending, ordering the defendant W. L. Pickard to turn over to George Westervelt, referee, one handred shares of Alice mining stock, on or before July 27, 1894, said stock to be held by said referee in satisfaction of a judgment in said case against said Pickard, ánd until further order of the court. Said stock was not turned over to the referee as directed in said order, but three days after the expiration of the time mentioned in said order, according to the statements made by Pickard in his affidavit set out in the record, at the earnest solicitation of Williams, said stock was delivered to him by Pickard, to be retained until the termination of said action, by the said Williams as attorney for plaintiff, simply for security, and for no other purpose. As the client of Williams and the defendant Pickard were the only parties interested there was nothing to prevent the attorney in the case and Pickard from making an arrangement for disposing of the stock, different from that directed by the order, without applying to the court, and any such arrangement would be as binding upon the parties as any other contract which they might enter into, and for any breach of which an action for the recovery of damages would lie. Mr. Williams admits that he received the stock from the defendant Pickard, and alleges in his affidavit that soon after the stock was turned over to him, and after inquiring and learning that its value was about twenty-five cents per share, he went to the office of Pick-ard and.said to him “that he could find no sale for the stock, and that he did not want to pay any money out to have the same sold at public sale; that he would watch his opportunity and see if he could find a private sale for it; that Pickard said he did not care how it was sold; that *439it was all the property he had that could be applied on said judgment, and that plaintiff could have the stock and do what he pleased with it;” * * * “that after keeping the stock in his safe two years he (Williams) sold the same to Sharp Walker for twenty-five dollars, its fair value on the open market.”

Sharp Walker in his affidavit states “that a few days after the purchase of said stock he went to W. L. Pickard and told him that he had bought said stock from Williams, and that the said Pickard consented to the same and made no claim whatever for said stock, or any objection to the sale; * * ‘ * that no dividends were paid on the stock while the same was in the possession of Williams.”

Mr. Walker, on oral examination, testified, “that soon after he had bought said stock he had told Pickard he had bought it; that Pickard did not object to the sale and laid no claim to the stock at that time; that within thirty days a dividend was paid on the stock; that the stock not having been transferred on the books of the company he went to Pickard and got him to sign over the dividend slips so that witness could draw the dividends.”

The statements of Mr. Walker, before quoted, were not denied by Mr. Pickard, although he filed an affidavit in which he denied the statements of Mr. Williams.

Considering the statements of Mr. Pickard, Williams and Walker, together, there is no doubt but that there was an arrangement between Williams and Pickard, under which said stock was to be held and disposed of, and that the order of the court was entirely ignored by the parties. The record shows that the market price of the stock went up shortly after the sale to Walker.

Several months after the sale, Pickard demanded said stock of Williams, and upon refusal or neglect of Williams to redeliver the same, Pickard, upon affidavit, obtained an *440order requiring Williams to show cause, before the Third District Court, why a peremptory order should not be made requiring him to deliver to said W. L. Pickard, one hundred shares of the stock of the Alice Mining Company, together with twenty dollars, the amount of the dividends earned by said stock since the 30th day of July, 1894. On the final hearing, Williams was, by the order of the court, required to deliver said stock to the defendant W. L. Pickard, and from this order Williams has appealed to this court.

At the trial in the court below, objection was made by appellant’s counsel, to the jurisdiction of the court, and the action of the court in overruling the objection is assigned as error.

The order of the district court made on July 25th, 1894, required Pickard to turn over the stock to George West-ervelt, referee, on or before the 27th day of July, 1894, to be held for a satisfaction of a judgment against Pickard. Pickard did not obey this order, but after the time had expired for doing so, he delivered the same to Williams subject to conditions essentially different from those contained in the order of the court. Williams acted, simply, as an agent of his client in the matter. The order did not direct the stock to be delivered to him, nor did it impose upon him the performance of any duty or make him a trustee, and for that reason he could not violate the order, or be held amenable in the premises by the summary process of the court. Having received the stock under an arrangement with Pickard, different in its conditions from the order of the court, Pickard’s only remedy for a breach of these conditions, would be an action for damages against the plaintiff. Perhaps such action might lie against both plaintiff and Williams.

The lower court, in making the final order appealed *441from, acted without jurisdiction in the premises, and it is therefore adjudged by this court that the said order be, and the same is hereby vacated, and that the appellant recover his costs in the premises. ‘