Cox v. Barnes

• Citation: 45 Neb. 172,63 N.W. 394
• Parties: COX v. BARNES.
• Decision Date: 23 May 1895
• Court: Supreme Court of Nebraska

45 Neb. 172

63 N.W. 394

COX

v.BARNES.

Supreme Court of Nebraska.

May 23, 1895.

Syllabus by the Court.

1. It is a well-settled rule that an attorney is bound to the most scrupulous good faith when acting for his client. He must be loyal to the interests intrusted to his care. The members of a firm of attorneys cannot represent opposite sides of the same cause without the knowledge and consent of the clients.

2. After a firm of attorneys had been employed by a defendant, a new member was taken into such firm, to whom the client revealed the evidence upon which he relied to defeat the action; and subsequently such attorney was employed by, and rendered assistance on the trial to, the adverse side, with full knowledge of the defendant, and without objections. A judgment was rendered in favor of the plaintiff. Held, in an action on such judgment in another state, the defendant could not set up as a defense thereto that the judgment was obtained by the fraudulent conduct of the attorney, but that, on calling of the original cause for trial, the defendant should have moved the court to exclude the attorney from appearing for and assisting the adverse side.

Error to district court, Pierce county; Allen, Judge.

Action by O. H. Barnes against William R. Cox. Judgment for plaintiff, and defendant brings error. Affirmed.Wigton & Whitham, for plaintiff in error.

Benj. Lindsay, W. W. Quivey, and Powers & Hays, for defendant in error.

NORVAL, C. J.

On the 13th day of January, 1890, in a cause pending in the district court of Montague county, Tex., a judgment was rendered in favor of O. H. Barnes and against William R. Cox for $1,650 debt and $73.75 costs of suit. This action was brought upon said judgment in the district court of Pierce county, this state. The petition is in the usual form. The amended answer, for a defense, avers that the judgment declared upon was obtained by the plaintiff by fraud and undue means. The allegations of fraud set up in the answer are as follows: “That plaintiff, after the commencement of the action upon which said judgment was obtained, fraudulently, corruptly, and for the purpose of influencing defendant's attorneys against defendant's interests, and preventing their performing and causing them to neglect their duties toward defendant in the trial and defense of the said action, so that plaintiff might obtain said judgment, employed and procured the services of one J. M. Chambers, an attorney at law, and a member of the firm of Stephens, Herbert & Chambers, who were at the time the employed attorneys of defendant in the action, to assist plaintiff in the trial and prosecution of said action and the procuring of said judgment, well knowing that said Chambers was one of the said firm of Stephens, Herbert & Chambers, and that said firm were defendant's attorneys as aforesaid; and agreed to and did pay said Chambers therefor the sum of $100, for the benefit of said firm of Stephens, Herbert & Chambers.” The answer further charges that by reason of the fraudulent employment of Chambers, and said undue and corrupt influence on the part of plaintiff, the defendant was prevented from having a fair and impartial trial of the issues in said court; that defendant did not discover the said fraudulent acts and conduct until the trial had begun, and not fully known until after the rendition of the judgment; that the defendant was not indebted to the plaintiff in any sum whatever in the suit in which said judgment was obtained, but had a complete defense to the action. The plaintiff, for reply, denied all charges of fraud made in the answer. At the close of the defendant's testimony, the court, on motion of the plaintiff, instructed the jury to return a verdict against the defendant...