Schuek v. Hagar

• Decision Date: 27 December 1877
• Citation: 24 Minn. 339
• Parties: Justina Schuek, an infant, by her guardian, v. John Hagar
• Court: Minnesota Supreme Court

24 Minn. 339

Justina Schuek, an infant, by her guardian, v. John Hagar

Supreme Court of Minnesota

December 27, 1877

This action was brought in the district court for Goodhue county to recover damages for divers assaults alleged to have been made upon the infant plaintiff. The action was brought by a guardian ad litem, and tried by Crosby, J., and a jury. At the close of the trial the defendant requested the court to instruct the jury to find a verdict for the defendant, for the reason that the plaintiff had failed to establish the issue upon his part by the evidence given in said action. The court declined so to charge, and defendant excepted. The jury rendered a verdict for plaintiff and assessed her damages at $ 3,000. The defendant moved for a new trial, and while this motion was pending judgment was entered for plaintiff. The motion for a new trial was subsequently denied, and from this order the defendant appealed. The plaintiff moved in this court to dismiss the appeal.

The order denying a new trial is reversed, and a new trial directed.

Doughty & Card, for appellant.

J C McClure, for respondent.

OPINION

Berry J.

1. The plaintiff moves to dismiss the appeal upon two grounds. The first is that the appeal bond is insufficient, because executed by two practicing attorneys as sureties, in disregard of the fourth district court rule.

The defendant contends that, as the statute does not prohibit an attorney to become a surety, this rule is in derogation of the statute and therefore void. The statute is silent as to who shall and who shall not be a competent surety. But attorneys at law are officers of the court, which is therefore necessarily invested with general authority to control and protect them, so far as their professional character and duties, and their relations to suitors, to the court, and to the administration of justice, are concerned. The purpose and effect of the rule is to protect attorneys from the unreasonable importunities of clients, who, not satisfied with the faithful discharge of professional duty, insist that their attorneys shall become sureties for the result of litigation. To yield to their importunities is to assume pecuniary risks and losses which it is no part of the professional duty of an attorney to assume, and which he therefore ought not to assume. They are risks and losses, the assumption of which tends to make an attorney a quasi principal in litigation, rather than an officer of the court whose duty it is to act as a minister of justice. See Sharswood's Legal Ethics (3d Ed.) 163-167. Yet the relations between attorney and client are often such that the latter may well be said to possess an undue advantage over the former -- an advantage which not unfrequently puts it in the virtual power of the client to compel his attorney to assume the risks and losses spoken of. Upon these considerations we are of opinion that the rule in question is a legitimate and wholesome exercise of the authority of a court to control and protect its attorneys.

The motion to dismiss will therefore be granted upon the first ground, unless the appellant file a new appeal bond, or it be waived by the respondent.

2. The other ground of the motion to dismiss is that the appeal is taken from an order denying a new trial made after the entry of final judgment. The facts are that the motion for a new trial was made before the entry of judgment, a stay of proceedings being granted for the purposes of the motion that the stay being about to expire defendant applied for a further stay until the decision of the motion; that his application was denied, and thereupon judgment entered for the plaintiff, while the motion for a new trial was pending and undetermined. After the entry of judgment the order was made denying the motion for a new trial. This order cannot be reviewed upon an appeal from the judgment, and it is apparent that no opportunity was afforded for appealing from it before judgment. Yet the statute expressly gives a right of appeal from an order "refusing a new trial." To preserve this right of appeal we are of opinion that in an action tried by a jury, when, as in the case at bar, a party, notwithstanding he has used due diligence, has been unable to prevent the entry of judgment before the determination of a pending motion for a new trial, is not deprived by such entry of his right of appeal from an order made after the entry of judgment denying his motion for a new trial. Any other holding would practically nullify the statute, and deprive a party of its benefits without any fault on his part. This is...