Hill v. Cunningham
| Decision Date | 01 January 1860 |
| Citation | 25 Tex. 25 |
| Parties | WARREN J. HILL v. J. C. CUNNINGHAM. |
| Court | Texas Supreme Court |
In the case of Allcorn v. Butler, this court decided that an attorney who had contracted with his client for a specific fee, and who performed services in pursuance of the contract, either himself or by other competent persons, could not be deprived of his right to the fee because his client saw fit to compromise the suit. 9 Tex. 56.
Where the attorney contracts with the client for a contingent fee to depend upon the result of the suit, if the client compromises the suit without consulting the attorney, and without the attorney's consent, then the attorney will be entitled to recover the whole amount of the fee, in like manner as if the contingency had transpired, upon which the payment of the fee was made to depend.
Cases might present themselves in which the attorney would not be permitted to control the suit, so as to prevent a compromise.
A return of a writ of attachment executed by taking possession of the property therein recited, as the property of the defendant, “levied in the presence of W. K. White, B. Browder and W. B. Turnage,” is sufficient under the statute, which requires the officer to declare, in the presence of one or more credible witnesses, that he attaches the property.
The return of the officer on a writ of attachment, may, by leave of the court, be amended so as to make it formal, or to state something additional to the statement of the return, as originally made. The officer cannot, as a matter of right, amend his return after it has been duly made; but, in a proper case, the court will allow the return to be amended, and the amendment will relate back to the time when the original return was made; and the amendment and the original will, if necessary to a proper understanding of the doings of the officer, be considered as one return.
On a motion to quash, it is not error to refuse to hear evidence to impeach the return of the officer on the writ, which is sufficient on its face. The motion admits as true every thing appearing on the face of the papers.
Such objections to the proceedings as require the introduction of evidence to sustain them, can only be shown by plea. 19 Tex. 297.
APPEAL from Fayette. Tried below before the Hon. George W. Smith.
This was a suit brought by John C. Cunningham, as the assignee of Sanford C. Blanton, against Warren J. Hill, on the 1st day of January, 1859, for the recovery of thirteen hundred dollars, which the plaintiff alleged to be due to him as the holder and owner of two several contracts in writing, executed by the defendant to said Blanton in consideration of the services of the latter as an attorney-at-law in two certain suits therein described, which will more fully appear from the writings obligatory, which are as follows:
“WARREN J. HILL. [SEAL.]
Attest:
John Hunter.”
“Know all men by these presents, that, whereas, Messrs. L. F. & W. B. Price, and S. C. Blanton, Esq., have been heretofore employed by me to prosecute the suit of Warren J. Hill v. A. G. Hill, for certain negroes alleged to belong to the estate of Martha Hill, deceased; and, whereas, there has been a trial of said suit in the Fayette district court, at its spring term, 1856, and a verdict therein rendered for said A. G. Hill; and, whereas, I have resolved to appeal said suit to the supreme court of Texas: Now, therefore, should my said attorneys succeed in reversing the judgment of said district court in said suit, and eventually securing to me, or my representatives, three-fourths of said negroes, etc., then, and in that event, I promise and obligate myself to pay my said attorneys (in addition to what I have already agreed to pay them) the further sum of one thousand dollars, to be equally divided between them. Given under my hand and seal this 4th day of April, A. D. 1856.
WARREN J. HILL.” [Seal.]
The suits referred to in the foregoing instruments were commenced against Echols as guardian of A. G. Hill, who, coming of age during their pendency, became the defendant, and the style was changed accordingly.
The plaintiff's petition alleged performance by Blanton of the duties incumbent on him under the first recited obligation, by the rendition of all necessary services as an attorney in behalf of the defendant, in and about the management, advice and assistance in said suits, and that their trial at the spring term, 1856, resulted in a verdict in favor of A. G. Hill, the defendant. That after the trial of one of the causes, said Warren J. appealed therein to the supreme court, in which court it has since remained therein pending and undecided. That in pursuance of the employment of said Blanton under the second contract, the latter employed his time, and gave his attention and services in the suit in the supreme court, from the date of the appeal up to the period of instituting this suit, yet the defendant, about the 25th day of December, 1858, without the knowledge or consent of said Blanton, entered into a compromise with said Albert G., whereby they fully settled all matters in controversy between them in the suit pending in the supreme court.
By reason of the facts stated, the plaintiff alleges that the defendant is indebted to him in the several sums of money mentioned in the contracts, which he alleges were for a valuable consideration duly assigned and transferred to him by said Blanton, as appears by the indorsements thereon.
The plaintiff prayed that a writ of attachment issue against the property of the defendant, which was accordingly issued on the day of the date of filing the petition.
The plaintiff further alleged in an amended petition, that the two suits before referred to, pending in the district court, involved the same matters between the same parties, and were before the taking of said appeal consolidated, and the result of the trial had in the district court affected both alike, and that the merits of both were embraced in the cause pending by the appeal.
The defendant demurred to the petition, and answering to the merits admitted certain facts, and denied all other allegations of the petition; and for further answer pleaded, that if the alleged compromise was made, defendant entered into it because he was satisfied, from the delays and vexation which had been involved in the litigation, which was commenced on the 7th day of September, 1853, the uncertainty of the result as shown by one mistrial, and two verdicts in favor of the defendant, and the probable future delay and harassment incident to such a suit against his son,...
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...White v. Gay, 1 Tex. 384; McMullen v. Guest, 6 Tex. 275; Carder v. McDermott, 12 Tex. 553. See Clark v. Koehler, 32 Tex. 684; Hill v. Cunningham, 25 Tex. 25. [G] Danforth v. Streeter, 28 Vt. 490; v. Parkhurst, 21 Vt. 472. But compare Stacy v. Bostwick, 48 Vt. 192. [H] Jenkins v. Bradford, 5......
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