Cullison v. Lindsay

• Court: United States State Supreme Court of Iowa
• Writing for the Court: WATERMAN
• Citation: 108 Iowa 124,78 N.W. 847
• Parties: CULLISON v. LINDSAY ET AL.
• Decision Date: 08 April 1899

108 Iowa 124
78 N.W. 847

CULLISON
v.
LINDSAY ET AL.

Supreme Court of Iowa.

April 8, 1899.

Appeal from district court, Shelby county; W. R. Green, Judge.

Plaintiff's action was to recover attorney's fees. Each of the defendants interposed a general denial, and the defendant Lindsay set up a counterclaim, the details of which will be set out hereafter. There was a trial to jury. Verdict and judgment for plaintiff. Both parties appeal. Affirmed.

[78 N.W. 848]

B. I. Salinger, for appellants.

D. O. Stuart, T. H. Smith, and G. W. Cullison, for appellee.

WATERMAN, J.

The appeal of defendants having been first perfected, they will be denominated “appellants.”

Plaintiff insists that Lindsay's appeal is not properly in this court, because the notice thereof was served on the deputy clerk, when the clerk was accessible at the time. It is not claimed, however, that the clerk was present when the deputy was served. In any event, the service was sufficient. Sanxey v. Glass Co., 68 Iowa, 542, 27 N. W. 747;Manufacturing Co. v. Sterrett, 94 Iowa, 158, 62 N. W. 675.

2. In order to convey an understanding of the points involved, it is necessary that we make a somewhat extended statement of the issues presented by the counterclaim, which consists of charges of negligence and misconduct on plaintiff's part in the matters for which he is claiming compensation: Lindsay was the owner of a judgment against one John Gollobitch, of Shelby county, which he placed in the hands of Warren Gammon, an attorney, for collection. At this time the other defendant, Rainbow, was sheriff of Shelby county. Acting under instructions, said sheriff levied an execution issued upon this judgment on certain personal property, as belonging to the debtor. Rosina Gollobitch, the debtor's wife, made claim to the property seized, and brought replevin therefor. At this juncture, through the instrumentality of Gammon, plaintiff came into the case as attorney for Lindsay and the sheriff; and he took part in, or, as defendants claim, conducted, the trial. It was plaintiff's plan, in the trial, to meet the claim of Mrs. Gollobitch to ownership of the property with the charge that the same had been fraudulently conveyed to her by the judgment debtor. This case was tried, resulting in a disagreement of the jury. There was a second trial, but, before it came on, Mrs. Gollobitch filed a reply to the answer of defendant in replevin, pleading therein that the statute of limitations barred any claim of fraud. The first charge of negligence is that plaintiff went to trial in the face of this plea, when he knew, or should have known, that he could not successfully meet it. On the second trial, as the charge is made, plaintiff, over the objection of opposing counsel, had a deputy sheriff impanel the jury, and serve notice to take a deposition of one Nurre, that was intended for use in the case on behalf of his clients, and that he caused answers to certain interrogatories attached to a pleading on behalf of Mrs. Gollobitch to be answered by Gammon, instead of by the defendant in replevin, to whom they were addressed. This trial ended favorably for Rainbow. Mrs. Gollobitch appealed. The case was reversed on appeal because the jury had been so impaneled, the deposition so taken, and the interrogatories answered as stated. It is further charged that on this appeal, although the appellant filed a full and fair abstract, the plaintiff filed on the part of appellee an additional abstract, which was recklessly false in its statements of the testimony; that it contained a denial of the correctness of appellant's abstract, thus requiring appellant to file a complete transcript of the evidence, at a cost of $350, which amount, with the other costs, was taxed against defendant Rainbow on the reversal of the case, and defendant Lindsay, having indemnified said Rainbow, has been compelled to pay the same; that plaintiff made no argument in this case, nor did anything after filing the additional abstract. It is not disputed but that the costs of the second trial of the replevin case were $475.25, and the total costs in this court on appeal of that case were $711.25. Another claim is that plaintiff did not retake the Nurre deposition for use in the replevin case, which was tried a third time, with the result that these defendants were defeated. It is further charged against plaintiff that, as attorney

[78 N.W. 849]

for Lindsay, he began an action in equity to subject to the payment of the judgment mentioned certain real estate which stood in the name of Rosina Gollobitch, but which it was claimed had been conveyed to her by the judgment debtor in order to defraud his creditors. And it is said that, before the trial of that action, plaintiff refused to proceed in that matter, and withdrew from the cause, which was thereafter tried, and Lindsay was defeated, and that plaintiff negligently permitted said judgment to become barred by limitation. This is an outline of the charges made in the counterclaim. The details, so far as necessary, will be given as we consider the different issues, as will also the defenses which...