Nave v. Baird
| Decision Date | 31 May 1859 |
| Citation | 12 Ind. 280 |
| Parties | Nave v. Baird. Nave v. Lane and Another |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
The judgment is affirmed with 5 per cent. damages and costs.
M Nave, in person.
S. C Willson and J. E. McDonald, for appellees.
Baird sued Nave upon a promissory note for 200 dollars.
Answer by way of counter-claim, alleging that the note was given in consideration that said Baird, an attorney at law, should attend to a certain cause then pending against said Nave in the Fountain Circuit Court; that Baird did not, in a skillful manner, conduct the defense of the cause, and refused the instructions of his client in these particulars, viz.: that he refused to apply for a change of venue therein, and refused to put in the testimony of certain witnesses. It is further alleged that judgment went against Nave, whereby he was damaged 3,000 dollars, which amount, he claims, should be adjudged in his favor against Baird.
A jury was called to try the issue made. Verdict for the plaintiff, upon which the Court rendered judgment.
It is often very difficult for an attorney to determine, in a difficult, critical case, the proper steps to be taken in its prosecution or defense. A small circumstance, a slight injudicious move, may have an extremely prejudicial influence. A change of venue, injudiciously taken, may be construed to imply a consciousness of a bad cause; and an unsuccessful attempt to prove facts affecting prejudicially the character of the opposite party, or any of his witnesses, may so recoil as to turn the scale, in a doubtful case, against the party attempting it. In such cases, it is the duty of the attorney to advise his client to the best of his judgment; and it is generally the wiser course for the client to act upon the advice so given; but if he is unwilling to do so, it is safer for the attorney to follow the instructions of his client, so far as the rules of law may permit. But if he does not do so, and the client sues for damages, it will devolve upon him to show, presumptively, that he was injured by the course pursued by the attorney, in order to recover more, at least, than nominal damages.
In this case, it is not proved that the client positively insisted upon a change of venue, though he advised it. Nor is it shown that a case existed in which he could have obtained one. It has been decided that a second application for a...
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