Beal v. Codding

• Decision Date: 13 June 1884
• Citation: 32 Kan. 107,4 P. 180
• Parties: JOHN A. BEAL v. JOHN S. CODDING, et al
• Court: Kansas Supreme Court

4 P. 180

32 Kan. 107

JOHN A. BEAL v. JOHN S. CODDING, et al

Supreme Court of Kansas

June 13, 1884

Error from Pottawatomie District Court.

ACTION brought by Beal against Codding and three others, to recover for work and labor and for services as an attorney at law. Trial at the November Term, 1883, and verdict for defendants. New trial denied, and judgment for defendants for costs. This judgment the plaintiff brings here for review. The material facts appear in the opinion.

Judgment affirmed.

John A Beal, plaintiff in error, for himself.

R. S Hick, for defendants in error.

HURD J. All the Justices concurring.

OPINION

HURD, J.:

Action to recover for work and labor and professional services as an attorney at law. For the first cause of of action, the petition of the plaintiff states that defendants were members of the Pottawatomie county law-and-order league, an unincorporated association, and that they were, on the 11th of February, 1883, indebted to the plaintiff in the sum of $ 500 for work, labor, diligence and attention by the plaintiff before that time done and performed as attorney for defendants, and at their request, in prosecuting certain actions in the district court of Pottawatomie county, and performing other business as such attorney for the defendants, as members of such association, at their request; and for advice and counsel given by the plaintiff as such attorney to and for said defendants and about their business, at their request; and that such sum of money is due and wholly unpaid.

For a second cause of action, plaintiff states that defendants, being members of an unincorporated association known as the Pottawatomie county law-and-order league, on the 11th day of February, 1882, employed the plaintiff to assist in the prosecution of violators of the criminal law of the state of Kansas, and performing their business as such attorney for said defendants, as members of said association, at their request; and for advice and counsel given by plaintiff, as such attorney for the defendants, in and about their business, at their request; and that such labor performed, as such attorney for said defendants, in and about their business, is worth the sum of $ 500, which sum the plaintiff avers is now due and payable; yet the said defendants, although often requested, have not paid such sum, nor any part thereof. Wherefore, the said plaintiff prays judgment against the defendants for the sum aforesaid.

The defendants filed their answer to the petition of plaintiff, as follows:

"First, They admit that they were members of the Pottawatomie county law-and-order league, as alleged in the petition.

"Second, That on the -- day of , 1882, the Pottawatomie county law-and-order league paid the said plaintiff the sum of $ 33 for the services and advice mentioned in the petition, which was more than it then, or at any time, owed him therefor.

"Third, That the plaintiff was an officer, and designated prosecutor of said Pottawatomie county law-and-order league, whose compensation, according to the constitution, rules and regulations of said league, was to be such as should be directed by the executive board or committee of said league, and was directed and ordered by said board to be the sum of $ 10 for each conviction that should be secured by any criminal action commenced, or prosecuted by or under the orders or directions of said league; that the plaintiff consented and agreed to the said constitution, rules and regulations of said league, and agreed to perform the services mentioned in the petition for such compensation as should be and was directed and ordered by said executive board, and for the sum of $ 10 for each conviction that should be secured in any criminal action commenced or prosecuted by or under the order or directions of said league, and that no such convictions were ever secured; and that he, said plaintiff, never performed any service of any account for, or gave any advice whatever to said league, or to any of the members thereof, or the defendants, except as such officer, and as aforesaid.

"Fourth, And the defendants deny each and every allegation in said petition contained not herein expressly admitted."

No reply to such answer was filed by the plaintiff in the court below.

The case came on for trial at the November term, 1883, of the district court of Pottawatomie county, before the court and a jury. The plaintiff introduced the records and minutes of the Pottawatomie county law-and-order league in evidence, showing his appointment as attorney for the league, and then introduced the oral evidence of himself and others, tending to establish the claim set up in the petition, and the value of the services rendered. The defendants introduced evidence tending to prove their defense, and the plaintiff introduced evidence in rebuttal to the evidence introduced by the defendants. No objections to evidence were made on the trial, nor does it appear by the record that the court gave any instructions to the jury. The jury found a verdict for the defendants.

The plaintiff below, the plaintiff in error here, filed his motion for a new trial at the proper time, and stated as his grounds for the motion: first, that the verdict is not sustained by sufficient evidence; second, that the verdict is contrary to law; third, surprise that ordinary prudence could not have guarded against. To establish the third ground of the motion, the plaintiff introduced his own affidavit, which was all the evidence upon that point, and which is as follows:

"John A. Beal swears, that in this case in the winter of 1883, he employed W. P. Douthitt, Esq., of Topeka, to attend to this case; gave him a copy of the principal entries in the proceedings of the Pottawatomie county law-and-order league and acquainted him with all the leading facts in this case. That about the 1st of ...