Galligan v. Luther

• Decision Date: 06 January 1913
• Citation: Galligan v. Luther, 54 Colo. 118, 128 P. 1123 (Colo. 1913)
• Parties: GALLIGAN v. LUTHER.
• Court: Colorado Supreme Court

128 P. 1123

54 Colo. 118

GALLIGAN v. LUTHER.

Supreme Court of Colorado

January 6, 1913

Error to District Court, Pueblo County; C. S. Essex, Judge.

Action by M. J. Galligan against William P. Luther.From an insufficient judgment, the plaintiff brings error.Reversed.

M. J Galligan, of Pueblo, for plaintiff in error.

McCorkle & McCorkle, of Pueblo, for defendant in error.

GABBERT J.

Plaintiff in error commenced an action against the defendant in error to recover the sum of $350 claimed as the balance due for services as an attorney in the sum of $500, and $50 advanced at the defendant's request.After the issues were made plaintiff, without leave of court, or application for that purpose, filed an amended complaint, in which he claimed that the services rendered were worth the sum of $1,000, and prayed judgment for $850.A copy of this amendment was served upon counsel for defendant.A few days after service of the amendment, plaintiff, without notice to defendant, or rule upon him to plead to the amended complaint, had the cause set for trial.Pursuant to this order, and without any further proceedings or knowledge on the part of defendant, plaintiff tried the cause before a jury, and obtained a verdict for $850, upon which judgment was rendered.Shortly after defendant moved to set aside the verdict and judgment upon the ground, among others, that the cause was not at issue when tried.This motion was sustained.Thereafter the defendant filed an amended answer to the amended complaint and the cause was tried before a jury, and a verdict rendered for $50, upon which judgment was entered.The plaintiff brings the case here for review.

The first point urged is that the court erred in setting aside the judgment.Without leave of courtthe plaintiff was without right to file an amended complaint.

After the amended complaint was filed, increasing the claim for services from $500 to $1,000, the cause was tried without notice to defendant, and in his absence, and without an amended answer or rule to file one.We think the court ruled correctly in setting aside the judgment.

The defense was to the effect that plaintiff had agreed to render the services to recover the value of which the action was brought for the sum of $260, upon which defendant had paid $246.The testimony on the part of defendant tended to support this contention.It was also claimed on his part that plaintiff had not complied with his agreement, and for that reason he had been compelled to employ other counsel.There was no testimony as to what sum he had paid on this account, or what the services of other counsel were reasonably worth.The claim of plaintiff was that there was no express agreement, but that he was to be paid the reasonable value of the services rendered.The testimony on his behalf was that they were worth the sum claimed.There was no evidence to the contrary.Plaintiff testified that only $200 had been paid.The verdict rendered was wholly at variance with the testimony, and the theory upon which it was tried and submitted to the jury by the respective parties.A verdict must be consistent with the testimony and the facts which it purports to determine.It must be consistent with some legitimate theory of the testimony or what the testimony tends to prove; and, when it is not warranted by any legitimate analysis of the evidence or what may be fairly inferred therefrom, it should be set aside.Burns-Moore M. & T. Co. v. Watson, 45 Colo. 91, 101 P. 335.

According to the testimony on behalf of plaintiff, he was entitled to recover practically the sum...