Wigton v. Smith

• Decision Date: 19 November 1895
• Citation: 46 Neb. 461,64 N.W. 1080
• Parties: WIGTON ET AL. v. SMITH.
• Court: Nebraska Supreme Court

46 Neb. 461

64 N.W. 1080

WIGTON ET AL.

v.SMITH.

Supreme Court of Nebraska.

Nov. 19, 1895.

Syllabus by the Court.

1. The plaintiff, in his petition, alleged that the defendant, an attorney at law, had received from the clerk of a district court the sum of $_____ for his (the plaintiff's) use; that he had demanded said money of defendant, and the latter had refused to pay it over, and that said defendant had not come into the possession of said money by virtue of any contract with him, the plaintiff. The defendant answered, admitting the receipt and retention of the money sued for; that it was paid to said clerk of the district court by a railroad company in satisfaction of a judgment obtained against it by the plaintiff; that defendant was plaintiff's counsel in that case, and that the money sued for was the amount of compensation which the plaintiff agreed the defendant might retain out of said judgment for his services in obtaining it. On the trial the district court instructed the jury as follows: “You may, by your verdict, allow the defendant such amount for his services and expenses as you may believe from a fair consideration of all the testimony in the case he is entitled to receive.” Held, that the plaintiff, under the allegations in his petition, was entitled to recover all the money for which he sued or none; that the defendant, under the allegations of his answer, was entitled to retain all the money in his hands or none; and that, therefore, the instruction was erroneous.

2. A plaintiff must recover, if at all, on the cause of action stated in his petition. It is not the province of a reply to introduce new causes of action. School Dist. v. Caldwell, 19 N. W. 634, 16 Neb. 68;Savage v. Aiken, 33 N. W. 241, 21 Neb. 605,--followed.

Error to district court, Madison county; Robinson, Judge.

Action by William G. Smith against Wigton & Witham, partners. Plaintiff had judgment, and defendants bring error. Reversed.Wigton & Witham, in pro. per.

H. C. Brome and Mapes & Hazen, for defendant in error.

RAGAN, C.

In the district court of Madison county William G. Smith recovered a judgment against Wigton & Witham, a co-partnership engaged in the practice of law, and they have brought such judgment here for review. To a proper understanding of the errors assigned for a reversal of this judgment it becomes necessary to summarize the pleadings. Smith, in his petition, alleged that on the 23d day of March, 1888, Wigton & Witham received from the clerk of the district court of Platte county the sum of $10,795.25 for his (Smith's) use; that before the filing of his petition he had demanded the payment of said money from Wigton & Witham, and they had refused to account for and pay over any of said money, except the sum of $7,668.50, leaving a balance due Smith of $3,126.75; that said Wigton & Witham obtained said money from the clerk of the district court of said Platte county by virtue of no contract with him (Smith). Wigton & Witham, in their answer, alleged: That in September, 1881, Smith was the owner of a claim or cause of action for damages against a railroad company. That he then employed Wigton as his attorney to collect said claim from said railroad company by suit or compromise. That he (Smith) agreed to advance and pay all expenses and costs incurred by Wigton in the prosecution or settlement of such claim, and to pay Wigton as compensation 20 per cent. of all the money received from said railroad company on account of said claim. That Wigton accepted said employment, and undertook the collection of said claim, on the express condition that Smith would advance and pay the expenses and costs necessarily incurred by Wigton in the settlement or prosecution of the claim. That Wigton was unable to effect a compromise of the claim, and in July, 1882, brought suit for Smith against the railroad company. That Smith failed and neglected to advance or pay any of the expenses or costs incurred by said Wigton in the prosecution of said suit, and that he (Wigton) was compelled to and did advance and pay such costs and expenses. That the suit brought by Wigton against the railroad company was by the district court of Madison county dismissed. That Wigton or Wigton & Witham prosecuted to the supreme court of Nebraska a petition in error to reverse said judgment of dismissal, and that said supreme court did reverse the said judgment of dismissal of said case, and thereupon it was agreed between Wigton and Smith that the contract existing between them in reference to the collection of Smith's claim for damages against said railroad company should no longer be in force; and in September, 1885, a new contract was entered into between Smith and Wigton & Witham in and by which they agreed to prosecute the action of said Smith against said railroad company to final judgment, and collect the judgment when...