Mosely v. Jamison

• Decision Date: 08 January 1894
• Citation: 71 Miss. 456,14 So. 529
• Court: Mississippi Supreme Court
• Parties: E. A. MOSELY v. A. J. JAMISON

14 So. 529

71 Miss. 456

E. A. MOSELY v. A. J. JAMISON

Supreme Court of Mississippi

January 8, 1894

FROM the circuit court of the first district of Chickasaw county HON. NEWNAN CAYCE, Judge.

Mosely instituted an action for damages against Jamison for assault and battery, and agreed to give his attorney who brought the suit one-half the recovery for his services. He also agreed to pay the actual expenses incurred by the attorney whine prosecuting the suit. After several trials and appeals to the supreme court, when the costs had become very large, the parties entered into an agreement of compromise, by which Jamison was to pay Mosely $ 150, and was also to pay the costs. He paid the costs, in accordance with the agreement and the case was dismissed. This was without the knowledge or consent of the attorney who brought the suit. He being notified of the compromise, appeared during the term and moved the court to set aside the order of dismissal and re-instate the case. He showed to the court his interest as above stated; that he had prosecuted the suit in good faith finally recovering a judgment in favor of the plaintiff for five thousand dollars, which had been reversed on appeal prior to the compromise; that he had incurred an expense in the litigation of not less than fifty dollars; that the compromise was made without his knowledge or consent, and after he had given the defendant notice that he owned a halfinterest in the suit, and that Mosely was not authorized to compromise without his consent. With said motion the attorney asked leave to amend the declaration, under § 1507, code 1880, so as to make himself a party plaintiff. The motion was overruled, and the attorney filed a bill of exceptions setting out the above facts, and threatened to appeal to the supreme court. Jamison being informed of this refused to pay the $ 150, whereupon Mosely instituted this suit against him for the recovery of the amount. He defended upon the ground that the agreement had not been complied with on Mosely's part, and that the original suit had not been finally disposed of; that the attorney had given him notice not to pay Mosely, and of his intention to appeal; that inasmuch as the two years within which an appeal could be prosecuted had not expired, the suit was still pending and undetermined. The facts above stated were shown at the trial, and it was also shown that Mosely had agreed not to compromise the case without consent of his attorney.

On behalf of defendant, the court instructed the jury that if the attorney of record had an interest in the suit as stated, and that it was mutually agreed that the same should not he dismissed without his consent, then, without such consent, Moseley could not dismiss the suit, and plaintiff could not recover. Defendant prevailed and plaintiff appeals.

Reversed and remanded.

E. A. Mosely, appellant, pro se.

Plaintiff has done all he could in carrying out the agreemerit to dismiss the suit. The attorney in the original suit cannot maintain himself by an...