Hosford v. Eno

• Decision Date: 03 September 1918
• Docket Number: No. 4339.,4339.
• Citation: 168 N.W. 764,41 S.D. 65
• Parties: HOSFORD v. ENO.
• Court: South Dakota Supreme Court

41 S.D. 65

168 N.W. 764

HOSFORD

v.ENO.

No. 4339.

Supreme Court of South Dakota.

Sept. 3, 1918.

Appeal from Circuit Court, Charles Mix County; Robert B. Tripp, Judge.

Action by P. A. Hosford against D. G. Eno. From a judgment for plaintiff, defendant appeals. Reversed and remanded.Roy E. Willy, of Platte, and French, Orvis & French, of Yankton, for appellant.

Ambrose B. Beck, of Geddes, for respondent.

McCOY, J.

Plaintiff, as an attorney at law, instituted this action to recover from defendant the sum of $400 and interest, under a contract retaining him to act as attorney for defendant. Defendant answered, admitting the contract, but denied that plaintiff had ever rendered him any service as attorney by virtue thereof, and that there had been no consideration for said contract under which plaintiff seeks to recover. Defendant also alleged that said contract was illegal and void as being against public policy, by reason of facts hereafter appearing. There was verdict and judgment in favor of plaintiff, and defendant appeals.

The sole question to be determined in this case is whether the respondent, who was city attorney of Platte, charged with the duty of prosecuting appellant for a violation of the ordinances of said city, might legally accept employment from defendant to represent him in the circuit court, or out of court, on a criminal charge against appellant arising out of the same transaction, upon which was based the prosecution for the violation of the said city ordinances. It is the contention of appellant that it is against public policy and sound legal ethics to permit respondent to accept such services or enter into a contract to perform services for appellant under such circumstances, and that therefore the contract sued upon was void and of no effect. We are of the view, and so hold, that the contention of appellant is right. It appears from the record beyond all question that appellant had been arrested for violating certain ordinances of the city of Platte, and that the respondent then and there held the office of city attorney of that city, and was charged by law with the duty of prosecuting appellant for the violation of said ordinances, and that after the said arrest of appellant, the respondent entered into a contract whereby the respondent agreed, for the sum of $400, to represent and defend appellant, either in or out of the circuit court, against a criminal charge in relation to the same subject-matter and transaction upon which the charge for violating the city ordinances was based; in other words, the respondent by entering into said contract placed himself in the position of attempting to serve two masters at once whose interests were legally hostile to each other. One of the professional services incident to the office of city attorney is the duty of prosecuting actions brought on behalf of the city for violation of its ordinances. The contract entered into by respondent with appellant was in direct conflict with his duties as city attorney. The rule is rigid, and designed not alone to prevent the dishonest...