Mead v. Weaver

• Citation: 60 N.W. 385,42 Neb. 149
• Parties: MEAD v. WEAVER.
• Decision Date: 03 October 1894
• Court: Supreme Court of Nebraska

42 Neb. 149

60 N.W. 385

MEAD

v.WEAVER.

Supreme Court of Nebraska.

Oct. 3, 1894.

Syllabus by the Court.

1. On suggestion of the death of one of two plaintiffs, where it had been ordered that the action proceed in the name of the survivor as plaintiff, held, that thenceforward said survivor was such representative of the deceased that a conversation between one of the parties interested and deceased was not provable by such interested party's testimony.

2. The taxation of attorney's fees by the federal courts is a matter of which such courts have sole cognizance, and such taxation cannot, in the state courts, be impeached as being contrary to public policy.

Error to district court, Douglas county; Ferguson, Judge.

Action in the county court by Frank L. Weaver and Ernest W. Whipple against William D. Mead, Jr. On appeal to the district court, on the death of Whipple, the action was ordered to proceed in the name of Weaver, and from the judgment therein for plaintiff defendant brings error. Affirmed.W. A. Redick, for plaintiff in error.

Weaver & Giller and C. A. Baldwin, for defendant in error.

RYAN, C.

This action was begun in the county court of Douglas county, by Ernest W. Whipple and Frank L. Weaver, as partners doing business in the name and style of Whipple & Weaver. After an appeal had been taken to the district court, the death of Ernest W. Whipple was suggested, and on motion it was ordered that the case proceed in the name of Frank L. Weaver, the remaining party plaintiff. In the petition it was averred that plaintiffs were practicing attorneys, and that during the month of December, 1888, the defendant, William D. Mead, placed certain notes, secured by two mortgages, in the hands of plaintiffs, with instructions to foreclose the same in the UnitedStates circuit court for the district of Nebraska, and promised to pay plaintiffs for such services, and plaintiffs promised to take therefor whatever sum the said court should allow as attorney's fees; that pursuant to such instructions, and in consideration of the aforesaid promise, plaintiffs began two foreclosure suits in favor of the aforesaid William D. Mead,--one on December 14, 1888, against George J. Paul and Gustave B. Hengen; and the other on December 26, 1888, against George J. Paul and George Tzschuck,--and prosecuted said suits to judgment; that in each of said foreclosure actions a request for stay was duly filed. It was further alleged by the plaintiffs that as attorneys in said foreclosure proceedings they obtained an allowance of the sum of $175 as attorney's fees in each case, and that about the expiration of the stays taken they were discharged as attorneys from both foreclosure cases, and that, after discharging plaintiffs as such attorneys, William D. Mead settled and satisfied of record the judgment rendered in the case first above described. The recovery of judgment for the above aggregate sum of $350, with interest thereon from July 8, 1889, the date whereupon the two decrees of foreclosure were entered, constituted plaintiffs' first cause of action. For their second cause of action the aforesaid plaintiffs alleged in their petition that on the 14th day of June, 1889, they, at the request of William D. Mead, on his behalf commenced injunction proceedings in the said United States circuit court to restrain George J. Paul and others from removing from the premises on which Mead held a mortgage certain buildings, constituting a part of the realty mortgaged, and obtained a restraining order as prayed, for which services they claim judgment for the sum of $100, with interest from June 14, 1889. In the answer it was alleged by way of defense that Mead was a resident and citizen of the state of New York when the aforesaid foreclosure proceedings were begun, while Jamieson was a resident and citizen of the state of Nebraska; that Mead was advised by plaintiffs to bring said foreclosure suits in the circuit court of the United States for the district of Nebraska, and further advised that said suits could not be brought in said court unless said Jamieson assigned and indorsed said notes and mortgages to said Mead, but that, if his assignment and indorsement were made, then said Mead, being a citizen of New York, could bring suit in said court against the defendants in the foreclosure proceedings, who were all residents and citizens of the state of Nebraska; that in pursuance of the instructions of said plaintiffs, and relying on the advice so given, defendant Mead procured said assignments, and said suits were commenced in said court as alleged; that the petition in either of said foreclosure suits did not disclose the residence or citizenship of Jamieson, but alleged the citizenship of Mead and the several respondents in each suit, but nowhere in said suits did the citizenship of said Jamieson appear until after decrees and the expiration of the stays. The defendant furthermore answered that upon expiration of the stays, when orders of sale had been issued, the defendant for the first time discovered that the said circuit court had...