Catalog Ass'n v. A. Eberly's Sons, 5130.

• Decision Date: 01 June 1931
• Docket Number: No. 5130.,5130.
• Citation: 50 F.2d 981,60 App. DC 216
• Parties: CATALOG ASS'N v. A. EBERLY'S SONS, Inc.
• Court: U.S. Court of Appeals — District of Columbia Circuit

60 App. DC 216, 50 F.2d 981 (1931)

CATALOG ASS'N v. A. EBERLY'S SONS, Inc.

No. 5130.

Court of Appeals of District of Columbia.

Argued May 6, 1931.

Decided June 1, 1931.

William J. Hogan, Jr., and Wilfred Hearn, both of Washington, D. C., for plaintiff in error.

Nathan Levin, H. Winship Wheatley, and H. Winship Wheatley, Jr., all of Washington, D. C., for defendant in error.

Before MARTIN, Chief Justice, and ROBB, HITZ, and GRONER, Associate Justices.

MARTIN, Chief Justice.

The Catalog Association, as plaintiff, filed a declaration in the municipal court against A. Eberly's Sons, Inc., as defendant, claiming judgment against the defendant in the sum of $755 upon allegations, in substance, as follows: That in November, 1926, the A. Eberly's Sons, Inc., instituted an action at law against the Catalog Association in the municipal court of the city of Chicago, a court of record, that the Catalog Association filed a set-off in the case, and recovered a judgment thereon in the sum of $755, that the same is a valid and outstanding judgment against defendant, and is wholly unpaid; that in the Chicago action the name of A. Eberly & Sons Co., Inc., was used as defendant's title instead of the correct name of A. Eberly's Sons, Inc. An attested copy of the judgment and parts of the record of the Chicago case is annexed to the declaration, showing, among other things, that the plaintiff in that case was represented by Harris, Reinhardt & Russell, as attorneys.

In answer to the declaration, the defendant below filed a plea wherein it denied that it ever instituted any action against plaintiff in the municipal court of Chicago, or sued plaintiff or prosecuted the alleged cause of action under the name of A. Eberly & Sons Co., Inc., or that a set-off was filed and judgment thereon recovered against it in the sum of $755, or any other sum; and defendant denied that it was the plaintiff in the Chicago case, and denied that any one had authority to file such a suit on its behalf.

At the trial of this issue in the municipal court, the plaintiff offered in evidence the deposition of J. J. Russell, who testified that he was an attorney at law practicing in the city of Chicago, associated with the firm of Harris, Reinhardt & Russell, attorneys of that city, and that his firm had filed various papers in the municipal court of Chicago in the case entitled A. Eberly & Sons Co., Inc., v. The Catalog Association, including a præcipe, statement of claim, affidavit of claim, and also an affidavit of merits to the set-off filed by the Catalog Association. The witness further testified that the suit was brought in the name of A. Eberly & Sons Co., Inc., instead of A. Eberly's Sons, Inc., through "inadvertence on the part of the stenographer."

Thereupon various questions were propounded to the witness calling for answers tending to prove that the Chicago firm of lawyers had been employed and authorized by A. Eberly's Sons, Inc., to institute and conduct the action in question in the Chicago court. The questions were objected to, and the court sustained the objection upon the ground of "privileged communications due to relationship of lawyer and client." Answers tending to prove the alleged employment were duly tendered and refused, and exceptions...