Bachman v. O'Reilley

• Decision Date: 25 April 1890
• Citation: 24 P. 546,14 Colo. 433
• Parties: BACHMAN v. O'REILLEY.
• Court: Colorado Supreme Court

24 P. 546

14 Colo. 433

BACHMAN v. O'REILLEY.

Supreme Court of Colorado

April 25, 1890

Appeal from district court, Arapahoe county.

P L. Palmer, J. W. Mills, and George Simmonds Jr., for appellant.

H B. O'Reilley, in pro per.

HAYT J.

At the March, 1884, term of the district court of Elbert county appellant, Frederick Bachman, was convicted of the crime of grand larceny, and sentenced to confinement in the state penitentiary. Bachman thereupon sued out a writ of error for the purpose of having the proceedings of the trial court reviewed by this court. To prosecute said writ of error appellant employed appellee in his professional capacity as an attorney. Appellee, in pursuance of such employment, prepared and filed in this court a motion supported by affidavits, and procured the advancement of the case upon the docket here. Thereafter he prosecuted the case to final determination. As a result of the proceeding, the judgment of the court below was reversed by this court. See Bachman v. People, 8 Colo. 472, 9 P. 42. The present action grew out of a disagreement between appellant and appellee in reference to the latter's compensation for services rendered in prosecuting said writ of error; the claim of appellee being that, when he was first retained in said cause, it was distinctly understood and agreed by and between appellee and appellant that for the former's professional services in said cause he was to receive and be paid a retainer of $250, which was to be in full compensation, unless successful in this court, in which event he was to receive such other and further compensation as his services should be reasonably worth, and that the services were reasonably worth the sum of $5,000. Appellant claims, on the contrary, that it was distinctly understood and agreed between the parties that the said sum of $250 was to be in full for all services in the cause, including a retrial of the case in the district court, should such retrial become necessary, in the event of a reversal of the judgment of conviction by the appellate court. It is conceded that $250 was in fact paid by appellant to appellee about the time the latter was employed in the case; and it is further conceded that, in addition to this payment, appellee had at different times, between the date of his employment and the bringing of the present suit, received divers sums of money from appellant, amounting in the aggregate to something over $200. Appellant claims that this money was loaned appellee, and asks for judgment against him for the same, while appellee claims that a part was advanced for the necessary expenses incurred in prosecuting the writ of error; the balance to be applied in payment pro tanto for his services. The trial resulted in a verdict for appellee in the sum of $2,000. A motion for a new trial having been filed and overruled, the court rendered judgment upon the verdict. Appellant, having duly reserved his exceptions at the trial, brings the case here for review.

Upon the trial the court refused to permit appellant to introduce evidence tending to show that appellee had not been regularly licensed to practice law in this state until after a part of the services for which appellant sought compensation had been rendered, and the action of the court in rejecting such evidence is made the basis of the first assignment of error to which our attention is called by counsel. Under our statute, an unlicensed person is prohibited from practicing law in the courts of record of this state in any case in which he is not concerned as a party, and if such an unauthorized person renders service to another, in violation of the statute, he will not be permitted to recover any compensation therefor. Hittson v. Browne, 3 Colo. 304. This being the law, the testimony offered should have been admitted, unless appellant was precluded by the pleadings from raising the issue thus sought to be raised. Turning to the pleadings, we find it alleged in the complaint 'that on or about October 1, 1884, plaintiff was retained by defendant as his attorney and counselor at law, in his behalf to prosecute,' etc. The defendant in his answer 'admits * * * that about October 1, 1884, in a certain case before the supreme court of Colorado, on a writ of error to the district court of Elbert county, * * * he employed plaintiff as his attorney at law in said case.' Again he avers that 'at Denver, on or about October 1, 1884, he employed the plaintiff as his attorney at law to prosecute,' etc; and also alleges 'that thereupon said plaintiff entered upon said services, acting as such attorney at law as aforesaid.' ...