Cressman v. Whitall

• Decision Date: 19 November 1884
• Citation: 21 N.W. 458,16 Neb. 592
• Parties: MARK S. CRESSMAN, APPELLANT, v. WILLIAM H. WHITALL, ASSIGNEE OF A. F. BLAIR ET AL., APPELLEE
• Court: Nebraska Supreme Court

21 N.W. 458

16 Neb. 592

MARK S. CRESSMAN, APPELLANT, v. WILLIAM H. WHITALL, ASSIGNEE OF A. F. BLAIR ET AL., APPELLEE

Supreme Court of Nebraska

November 19, 1884

APPEAL from the district court of Cuming county. Heard below before BARNES, J.

Reversed and remanded with instructions.

Lamb Ricketts & Wilson, for appellant.

John D Howe and R. F. Stevenson, for appellees.

OPINION

REESE, J.

This is an appeal from a decision and decree of the district court of Cuming county. The first question presented to this court for decision is upon a motion made by appellant for an order incorporating certain papers, recitals, etc., into the bill of exceptions, and which it is claimed the judge of the district court, wherein the cause was tried, wrongfully refused to incorporate therein. The bill of exceptions has been settled and signed by the district judge. Whether rightfully or wrongfully is not for this court to decide. He has acted upon the matter, and his decision under our statute is final so long as it stands unreversed. This court has no jurisdiction or authority to incorporate rejected matter into a bill of exceptions. The motion must therefore be overruled.

A great many exceptions were taken by the plaintiff on the trial in the district court, which are urged with considerable force in this court. But as in our view of the case they become unimportant they will not be noticed, and the case will be disposed of upon its merits.

The action is brought by plaintiff, who is the son and remote assignee of George W. Cressman, W. Cressman, who it is alleged was the owner of a certain decree rendered by the circuit court of the United States, enforcing a mechanic's lien against certain property in West Point, and which decree, not being satisfied, was rendered effectual by the decision of this court in Romig v. The West Point Butter and Cheese Association, reported in 12 Neb. 567. It appears that plaintiff's father, who was the original owner of the lien, assigned it to one A. F. Blair, as collateral security for a debt owing by him to Blair of something over $ 1,500, and also to secure a debt of something over $ 2,900 to the estate of one Gavit. The action to foreclose the lien was brought by Blair, who was seeking to enforce the lien for the purpose of applying the proceeds to the payment of the two claims referred to. Before the foreclosure was completed, Blair became insolvent and assigned his property to Whitall for the benefit of his creditors. Whitall then took charge of the matter of the enforcement of the lien so far as looking after the claim was concerned. The defendants Howe and Stephenson were the attorneys who had charge of the claim in this state, and were to a great extent subject to Whitall and certain attorneys in Philadelphia, who represented the estates of Blair and Gavit, Blair having died soon after his failure and assignment. There seems to be no direct proof that the notes which represented the indebtedness of Cressman to Blair were ever placed in the hands of the assignee of Blair, but by the testimony of George W. Cressman it appears that the notes were transferred to other parties, presumably before the assignment, and had been by the owners reduced to judgments, which do not appear to have been paid. The owners of these judgments are not made parties to this action, and of course their rights, if any, to the security have not been determined in this action.

While the actions growing out of the enforcement of the Cressman claim against the West Point Manufacturing Company were pending, most of which were quite expensive, Howe and Stephenson repeatedly called upon those interested, as appeared by the assignment to Blair, for aid in the way of money in prosecuting the actions. One of these actions was brought to this court on error by Howe and Stephenson, and is reported in 7 Neb. 146, Blair and Cressman v. The West Point Manufacturing Company. The parties in Philadelphia were either unable or unwilling to advance the money necessary to remove prior encumbrances from the property against which the lien had been established, some $ 2,000, and the property was sold upon the prior liens, and $ 990 (the surplus) paid to Howe, Stephenson, and Franse, attorneys, and which was divided between them. Some money was also sent to them to pay costs, etc., but a considerable portion of the money received by Howe and Stephenson was expended in costs and necessary expenses paid out during the litigation. After declining to furnish any money to aid in carrying on the litigation, Whitall and the attorney of the Gavit estate wrote to Howe giving him full authority to pursue such course and engage in such litigation as to him might seem best, but upon the condition that it should be at his risk as to costs, etc., and that if successful, he could deduct from the amount recovered such sum as would cover all expenses and pay him for the risk so assumed, and such attorney fee as he might see proper to charge, the repayment of expenses and his compensation to be contingent upon his success. The letter giving this authority, was written August 9th, 1879. It is pretty clear from the testimony that Cressman was not consulted as to this last authority given Howe, and that he was not aware of it, although one of the attorneys in Philadelphia testified that he was advised fully as to each step taken. It is very clear that he had a general knowledge of the case, and that it was in the hands of attorneys in Nebraska, but no correspondence was had between him and Howe or Stephenson. After a series of litigations extending from 1876 to 1882, and ending with Romig v. The West Point Butter and Cheese Association, supra, the lien was finally established, and the amount thereof, near $ 8,000, was about to be collected, when the plaintiff commenced this action alleging that by the assignment of the lien by his father he was the owner of the fund; that the amount due the Blair estate had been paid; that he was ready to pay the Gavit estate the amount due it; that Whitall had no authority to appear in the Romig case and secure the favorable judgment and decree obtained therein; that Howe and Stephenson had failed to remit the amount collected by them; that Howe and Stephenson have at no time been the attorneys of the plaintiff, but hostile to the interests of himself and his assignor, and had entered into a confederation with the parties in Philadelphia to collect the money and pay the same over to the Philadelphia parties, and for which services the said Howe and Stephenson are to receive large and...