Shepard v. Mendenhall

• Decision Date: 15 January 1917
• Docket Number: 99
• Citation: 191 S.W. 237,127 Ark. 44
• Parties: SHEPARD v. MENDENHALL
• Court: Arkansas Supreme Court

191 S.W. 237

127 Ark. 44

SHEPARD v. MENDENHALL

No. 99

Supreme Court of Arkansas

January 15, 1917

Appeal from Clay Circuit Court, Western District; J. F. Gautney Judge; reversed.

Judgment reversed and cause remanded.

J. L Taylor and C. T. Bloodworth, for appellant.

1. Bloodworth's testimony was not privileged. He was not acting as attorney for either party, but merely as a scrivener and notary public. 9 Ark. 307; 24 Id. 355; 22 A. & E. Ann. Cases, 834 and note, p. 839; 40 Cyc. 2365.

T. J Crowder, for appellee.

The court properly excluded C. T. Bloodworth's testimony. His information was obtained through professional relations to his client. It was privileged. Kirby's Digest, § 3095, subd. 5; 24 Ark. 345; 33 Id. 771; 78 Id. 71; 40 Cyc. 2361-5, 2370. The exclusion was not prejudicial.

OPINION

SMITH, J.

Appellee executed and delivered to appellant a deed to a tract of land. The consideration was there recited to be $ 150.00 cash in hand paid. In her complaint appellee alleged the consideration to have been in fact $ 2,000.00, and she seeks by this suit to recover judgment for the unpaid portion thereof. Both parties agree that the sum of $ 150.00 was not paid and that this was not the consideration in fact, but they sharply differ in their testimony as to what the real consideration was. Appellee recovered judgment for the amount of the consideration which she says appellant agreed to pay, and this appeal has been prosecuted to reverse that judgment.

Upon the trial of this cause one C. T. Bloodworth was sworn as a witness, and appellant offered to show that the parties called upon Bloodworth in the capacity of a notary public and scrivener to prepare the deed, and, in order that he might do so, stated to him the agreement between themselves. Objection was made to this evidence upon the ground that it was privileged, whereupon Bloodworth stated to the court: "Mr. Bloodworth: I want to state further that I was consulted by neither of them at that time in a legal capacity, but was only asked to draw up and acknowledge this deed for them."

The court sustained the objection to this evidence, and this action is assigned as error.

By Section 3095 of Kirby's Digest, an attorney is prohibited from testifying concerning any communication made to him by his client in that relation, or his advice thereon, without the client's consent; and the court below took the view that this statute was applicable to the facts of this case. We think this was error. The witness was offering to testify that neither party consulted him in a legal capacity, and that the relation of attorney and client was not constituted.

In 40 Cyc., pp. 2363-2365, it is said: "In order that the rule of privilege may apply, the relation of attorney and client must actually exist between the parties at the time when the communication is made or the information acquired, or at least the party making the communication must have believed that such relation existed, and so there is no privilege as to a communication by one party to his adversary's attorney. An attorney who acted as a mere scrivener in preparing a deed, will, or other instrument in accordance with instructions given to him, may testify as to the transaction; and an attorney who acts merely as a notary in taking the acknowledgment of a deed or other instrument may testify as to communications made to him at the time or the attending circumstances. * * * But where an attorney is employed in his professional capacity, he cannot testify as to communications in regard to a deed or other instrument which he prepared for his client in the course of such...