Clark v. Ellsworth

• Decision Date: 22 January 1898
• Parties: CLARK v. ELLSWORTH.
• Court: Iowa Supreme Court

104 Iowa 442

73 N.W. 1023

CLARK

v.ELLSWORTH.

Supreme Court of Iowa.

Jan. 22, 1898.

Appeal from district court, Kossuth county; Lot Thomas, Judge.

Action at law to recover for professional services rendered by an attorney. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals. Reversed.R. M. Wright and J. C. Cook, for appellant.

George H. Carr and George E. Clark, for appellee.

ROBINSON, J.

In the year 1891, and during the first part of the year 1892, the defendant and his wife, resided in Hardin county. On the 15th day of December, 1891, the district court of that county rendered a decree which divorced the defendant from his wife, and gave him the custody and control of their two minor children. No allowance to her for alimony was made. In January, 1892, she applied to have the decree set aside. The application was resisted, and a trial thereon was commenced; but before it was concluded Ellsworth withdrew all objections to the application, and asked that it be granted. Thereupon the decree was set aside, and Ellsworth dismissed his action without prejudice. Mrs. Ellsworth then commenced an action against her husband for a divorce, but before it was reached for trial a reconciliation was effected, the parties again cohabited, and the action of the wife was discontinued. In the proceedings mentioned she was represented by attorneys Charles A. Clark and F. C. Hormel, both of whom resided in Cedar Rapids. Clark, not having been paid for his services and disbursements, assigned his claim therefor to William C. Stevens, by whom this action was brought to recover the sum of $5,000 for services rendered, and $95 for money paid for costs and other expenses caused by the litigation. The plaintiff seeks to hold the defendant liable for the amounts in question, on the ground that the services and expenses were necessary to enable Mrs. Ellsworth to prosecute her litigation and secure and protect her rights; that she was without financial means to pay for them; and that by her agreement with Clark she made the defendant liable for them. The defendant denies that Clark was employed by Mrs. Ellsworth, denies that he is liable on account of the services and expenses in controversy in any sum, and denies that the services rendered were of the value claimed. A trial was had on the issues joined, and a judgment rendered, from which the defendant appealed to this court. The judgment of the district court was reversed, and the cause was remanded for further proceedings. See Stevens v. Ellsworth, 95 Iowa, 231, 63 N. W. 683. The death of Stevens was then suggested in the district court, and the administrator of his estate was substituted as plaintiff. A second trial was had, which resulted in a secondjudgment against the defendant, and he again appeals.

1. The appellant presents a motion to strike from the files an additional abstract of the appellee, on the ground that it was not served and filed within the time fixed by the rules for that purpose, and on the further ground that it does not comply with the rules, and is unnecessary. It does not appear that the submission of this cause has been delayed, nor any prejudice caused, by not serving the additional abstract within the time fixed by the rules; and it is not our practice, when that is the case, to strike the additional abstract from the files. The one in question contains some material matter, and, although it may set out some parts of the record with unnecessary fullness, yet it cannot be said that it is not an abstract, within the meaning of the rules. The motion to strike it from the files is therefore overruled.

2. The evidence in regard to the employment of Clark by Mrs. Ellsworth is conflicting, but the jury was authorized to find that he was employed to render the services for which a recovery is sought, and that question need not be further considered on this appeal. The question of chief importance is, what amount should the defendant pay for the services rendered and the disbursements made by Clark? The jury allowed the plaintiff $3,000 for the services of Clark, $95 on account of his disbursements, and interest in the sum of $757.80, and judgment was rendered for the aggregate amount of these sums. We held on the former appeal that where, as in this case, the compensation of an attorney is to be paid, not by the person who employed him, but by a third person, on the ground that it was a necessary expense, the amount allowed should be no more than what the service was reasonably worth where it was rendered, to be fixed by the practice at that place, and, in effect, that expert witnesses, to be qualified to testify in regard to the compensation to which Clark was entitled in this case, should know the value in Hardin county of services rendered there, and that the wealth of the defendant cannot be considered in estimating the amount of the compensation to which Clark is entitled. On the second trial the testimony of numerous attorneys, who resided in different parts of the state, was submitted by the plaintiff to show the value of the services rendered by Clark. Those witnesses were asked a hypothetical question, which covers nearly 12 printed pages. That assumed to be true numerous alleged facts which the evidence tended to establish, which were designed to show that the duties Clark was required to perform involved much labor and professional knowledge and judgment; that he was required to investigate many facts, to examine many authorities and records, to draw numerous pleadings, motions, and other papers, and make oral arguments; that he appeared in the district court of Hardin county on several occasions, and assisted in the trial of the application to vacate the decree of divorce; that the trial lasted four days, and that his efforts were successful; and that he devoted a full month to the discharge of the duties which he was required to perform. The statements contained in the hypothetical question, if true, showed that the defendant was worth $500,000 when he obtained the decree of divorce; that the original grounds upon which the divorce was sought were that the wife had for years been guilty of improper conduct with different men, receiving visits from them at unusual and improper hours, in the nighttime, and by her conduct had disgraced herself and family; that knowledge of such conduct had reached him with such effect as to make him nearly distracted, and greatly impair his health, and that the conduct of his wife had been so cruel and inhuman as to endanger his life; and that when the application to set aside the decree was made it was resisted, and to support the resistance he took the depositions of two witnesses to prove that his wife had been guilty of adultery. The interrogative part of the hypothetical question, answered by nine of the attorneys who testified for the plaintiff, was as follows: “What, in your judgment, is fair and reasonable compensation in gross for the services rendered by the said Clark on behalf of Mrs. Ellsworth in the litigation aforesaid, taking into consideration all the facts and circumstances above set forth, and the importance of the interests involved and the success attained?” The question, as answered by five of the witnesses for the plaintiff, contained the words, “in Hardin county, Iowa,” inserted immediately after the words, “compensation in gross.” Objections to the interrogatory in both its original and modified form were made on various grounds, and motions to suppress depositions upon such objections were made and overruled. The objections thus made were chiefly that the witnesses had not shown themselves qualified to testify in regard to the value in Hardin county of the services rendered, and that they had included in their estimates of the value of such services improper elements, as the wealth of the defendant and the ultimate benefit to his wife of the litigation in which the services were rendered. Each witness who answered the hypothetical question showed before he answered it that he had practiced law in different counties of the state, and that he knew generally the value of the professional services of attorneys throughout the state, or in Hardin county and vicinity, in the year 1892, when the services in question were rendered. There was nothing in the hypothetical question which required the answers thereto to be based, in whole or in part, upon improper consideration, and we are of the opinion that each witness who answered the question showed such knowledge and qualifications as made his testimony competent and admissible. The value of his testimony, if not shown by his direct examination, could have been and was disclosed by his cross-examination. Some showed greater knowledge than did others of the customary and reasonable charges made in Hardin county, but each one showed such general knowledge of the subject that his testimony should not have been suppressed, although it might not have been of much value. The general rules which regulate the admission of expert testimony in regard to tangible property, and services other than those rendered by an attorney, apply to the testimony of attorneys respecting the value of legal services; and it is well settled that evidence as to the value of such property is admissible, even though it be not of the highest degree of competency. Leek v. Chesley (Iowa) 67 N. W. 580;Carruthers v. Towne, 86 Iowa, 323, 53 N. W. 240;Latham v. Shipley, 86 Iowa, 543, 53 N. W. 342;State v. Finch, 70 Iowa, 317, 30 N. W. 578;Tubbs v. Garrison, 68 Iowa, 48, 25 N. W. 921;Lanning v. Railroad Co., 68 Iowa, 503, 27 N. W. 478;Gere v. Insurance Co., 67 Iowa, 275, 23 N. W. 137, and 25 N. W. 159;State v. Maynes, 61 Iowa, 120, 15 N. W. 864;Smalley v. Railroad Co., 36 Iowa, 574;Vilas v. Downer, 21 Vt. 423;...