Tuppela v. Mathison
| Decision Date | 20 August 1923 |
| Docket Number | 3973. |
| Citation | 291 F. 728 |
| Parties | TUPPELA et al. v. MATHISON. |
| Court | U.S. Court of Appeals — Ninth Circuit |
The defendant in error, as plaintiff in the court below, alleged that as an attorney at law he entered into a contract with one Tuppela for the purpose of taking any necessary proceedings for the recovery of certain mining properties and money which the latter claimed to own; that the plaintiff as such attorney was to act for said defendant in all courts in which it might be deemed necessary to prosecute said claims and to have the exclusive right to prosecute the same; that in consideration thereof the plaintiff was to receive as his pay one-half of the money and interests recovered by the defendant Tuppela; that the plaintiff upon his part performed said agreement and during a period of five months labored in the preparation of said cause; that said defendant without just or legal cause breached the contract and discharged the plaintiff and engaged other counsel to conduct said litigation. The defenses pleaded were: First, the plaintiff was not admitted to practice in the courts of Alaska in which jurisdiction such litigation necessarily was to be had second, that the discharge of the plaintiff was justified by his gross negligence in not instituting suit; third, that the plaintiff obtained his contract with the defendant through fraud and imposition upon the latter. Other defenses were pleaded not necessary here to be referred to. Upon said cause of action, the jury returned a verdict for the plaintiff for $2,500 damages.
John H. Cobb, of Santa Barbara, Cal., for plaintiffs in error.
R. E Robertson, of Juneau, Alaska, and Enoch E. Mathison, of Astoria, Or., for defendant in error.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
It is contended that it was error to deny the defendants' motion for an instructed verdict in their favor for the reason that the defendant Cobb was not a proper party defendant, and judgment could not properly be entered against him upon the cause of action. We are not convinced that Cobb was not a proper party defendant. The instrument under which Tuppela's property was transferred to him in trust contained the provision that the trustee was to pay out of the property transferred all debts due and owing or to become due and owing by Tuppela. But if indeed Cobb was not a proper party defendant, the objection for his misjoinder not having been made until the close of the trial, came to late. Mackay v. Fox, 121 F. 487, 57 C.C.A. 439. And in any view of the case, a misjoinder of one of several parties defendant is no ground for an instructed verdict in favor of all the defendants.
It is urged that the motion should have been granted for the reason that the plaintiff, not being a member of the bar of Alaska, was without capacity to perform the services stipulated in his contract with Tuppela, and therefore could not recover either on the contract or a quantum meruit. The plaintiff had been admitted to practice in the courts of Oregon both state and federal. He was a regularly licensed attorney at the place where the contract was made. In drafting the contract, he made special provision for the employment of local counsel in Alaska if he should deem it advisable. To carry out his contract it was not necessary that he should have been licensed to practice in the territory of Alaska. There can be no doubt, however, that had he appeared before an Alaskan court for the purpose of representing the interests of his client, he would have been permitted to appear as counsel in the litigation, under the rule of comity generally recognized in the states and territories, which is expressed in 2 R.C.L. 940:
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Spanos v. Skouras Theatres Corporation
...without his being admitted to the New York bar and cannot be considered an illegal bargain. Such is the holding of Tuppela v. Mathison, 291 F. 728 (9 Cir. 1923), and Cochran v. Burdick, 63 App.D.C. 150, 70 F.2d 754, cert. denied, 293 U.S. 561, 55 S.Ct. 73, 79 L.Ed. 661 (1934). See also In r......
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Freeling v. Tucker, 5384
... ... services were rendered does not prevent that person from ... recovering compensation for legal services. (Tuppela v ... Mathison, 291 F. 728; Harland v. Lilienthal, 53 ... N.Y. 438; Brooks v. Volunteer Harbor No. 4, 233 ... Mass. 168, 4 A. L. R. 1086, 123 ... ...
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Johnson v. Di Giovanni
...case ex gratia, even with statutes seeming to speak to the contrary, had been illustrated in a number of instances. Tuppela v. Mathison, 9 Cir., 291 F. 728; Freeling v. Tucker, 49 Idaho 475, 289 P. 85. In this latter case, 49 Idaho at page 479, 289 P. at page 86, the court 'The power of the......
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