Tobler v. Nevitt

• Decision Date: 01 February 1909
• Citation: 100 P. 416,45 Colo. 231
• Parties: TOBLER et al. v. NEVITT.
• Court: Colorado Supreme Court

100 P. 416

45 Colo. 231

TOBLER et al. v. NEVITT.

Supreme Court of Colorado

February 1, 1909

Appeal from District Court, Saguache County; Charles C. Holbrook Judge.

Action by John Nevitt against Emil Tobler and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

John W Davidson, for appellants.

George T. Summer, James D. Pilcher, and John Nevitt, for appellee.

CAMPBELL J.

Emil Tobler and Frances Tobler were plaintiffs in an action which was tried in the district court of Saguache county. Its object was to obtain an injunction against threatened acts of defendants therein. The judgment went against plaintiffs, and the action was dismissed. John Nevitt was the official stenographer of that court and took notes of the proceedings at the trial. After the trial was finished and the case was submitted to, and taken under advisement by the court, the plaintiff says that Ira J. Bloomfield, who was one of the attorneys retained by the Toblers in, and who helped try, the action, ordered Nevitt to write out in longhand a copy of the evidence, which he did. The defendants refusing to pay for the same, Nevitt brought this action against them, and recovered judgment from which they appealed.

There is a direct conflict between Nevitt and Bloomfield; the former asserting, the latter denying, the employment. As the law applicable to the facts as testified to by plaintiff is not what the court gave to the jury, we assume, for our present purpose, that his version of the controversy is correct. The plaintiff does not claim that the evidence was used in the trial of the case for the convenience of counsel or for the benefit of the trial judge in making findings, or that it was ordered for either purpose; but he says that there was no restriction made by him as to the use defendants were to make of it, though he was not employed to write it out until after the trial was over and the court had taken the case under advisement. Bloomfield was not the general attorney for the Toblers. He was retained by them for a special purpose, which was to conduct the trial in the district court to a final determination therein, and at its conclusion his fee was paid, and his connection with the case ceased. He was not retained, or authorized, to appeal the case or sue out a writ of error to the final judgment in case it went against his clients, unless the special retainer above mentioned, in law, gave him such authority. While the plaintiff says that no restriction or limit was placed upon the use to be made of the transcript when prepared, he must have known, as the evidence conclusively shows, that it was not, and could not be, used by Bloomfield or his clients in the trial of the case, for that had theretofore terminated and that it was not to be read by the judgment preparatory to his findings, since plaintiff did not have it prepared until after the entry of judgment. At the time plaintiff says he was employed to transcribe the evidence, the cause had been, as we have seen, submitted to the trial court. In a letter written by him to Bloomfield several weeks later, and after entry of judgment against Bloomfield's clients, plaintiff referred to that judgment, and in that connection said, in substance, that he supposed an appeal would be taken, and his transcript, though not then, soon would be, completed. This shows that plaintiff himself supposed that the transcript was to be used, if at all, by plaintiffs in connection with a review in the Supreme Court, and not by the trial judge in reaching his conclusion. The case then is one where the action is against the client, and where an attorney, retained specially to try a litigated issue in the district court, and without special authority from his client, employs the official stenographer in advance of judgment, and before it can be known what that judgment will be, to write out, from his notes, the evidence introduced at the trial for use on a review of the judgment in the Supreme Court.

The court specifically instructed the jury that if Bloomfield was attorney for defendants in the case in the district court, and ordered plaintiff to write out the evidence produced in the trial of that case, or to make a transcript thereof, even though they should find that Bloomfield had no special authority from his clients to give the order, plaintiff was entitled to recover, unless he then knew of the termination of the relation of attorney and client. In this we think the court was wrong as applied to the facts of this case. At common law the general rule is that the authority of an attorney to represent his client in an action ceases upon its final determination and the entry of judgment. Especially was this true as to the defendant's attorney, or, more accurately speaking, the attorney for the defeated party. The attorney for the prevailing party was empowered, under his employment as attorney, to enforce collection of that judgment by suing out a writ of execution. A distinction is also made by some of the authorities between the power of an attorney who is retained to try a litigated issue and one employed to collect a debt. In the former case his authority is usually regarded as ending with the trial of the case. In the latter he may, it seems, appeal from the judgment, if it is against his client, or sue out a writ of error to reverse it without a new retainer. If Bloomfield had ordered plaintiff to write out a transcript of the evidence for use in the trial of the case in the district court, or for the benefit of the judge as an aid to him in making findings, defendants would have been bound thereby. It does not follow, however, that Bloomfield, merely by virtue of his retainer to try the litigated issue in the district court, had authority to appeal, or bind his client by a direction of the stenographer to transcribe the evidence for use in the reviewing court. The testimony is uncontradicted that Bloomfield was employed by defendants as one of several attorneys to try the litigated issues in, and his employment ceased when the case was submitted to, the district court. He was not specifically authorized by defendants to take any steps looking to a review or reversal of such judgment as the court might thereafter pronounce against his clients. The plaintiff is a lawyer, as well as official stenographer of the court, and is presumed to know what authority an attorney possesses by virtue of his retainer to try a litigated issue.

A review of some of the leading authorities will show the extent and duration of the authority of an attorney. Plaintiff says that an attorney has implied power, without special authority, to bind his client by an order to an official stenographer to transcribe evidence to be used in the trial of his client's cause. Miller v. Palmer, 25 Ind.App. 357, 58 N.E. 213, 81 Am.St.Rep. 107, so holds. The decision was right in that case, for the evidence was ordered to be, and in fact was, used in the progress of trial of the cause in the trial court. Harry v. Hilton, 64...