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ALPERS V. HUNT.

[86 CALIFORNIA, 78.] PRACTICE - SUFFICIENCY OF COMPLAINT MAY BE CONSIDERED ON MOTION

FOR A NEW TRIAL if the defendant moved for a popsuit in the trial court on the ground that the contract set out in the complaint was

against public policy, and the motion was denied. PRACTICE. – ERROR OF COURT IN DENYING NONSUIT, IT EXCEPTED TO,

may be reviewed on a bill of exceptions. ATTORNEY'S CONTRACT TO DIVIDE FEES, WHETHER AGAINST PUBLIO POLICY.

- An agreement between an attorney and counselor at law, and a third person, who is neither, that if the latter will procure the employment of the former by a certain litigant he shall be entitled to one third of such compensation as the attorney may receive from such employment, is contrary to public policy and void, and will not support an action against the attorney to recover part of the compensation by him received. R. Percy Wright, for the appellant. Matt I. Sullivan, for the respondent.

THORNTON, J. This is an action brought by the plaintiff, as assignee of William L. Bolte, against John Hunt, executor of the last will and testament of George F. Sharp, to recover a sum of money claimed to be due on a contract alleged to have been made by Sharp and J. C. McCeney with plaintiff's assignor. On the trial, verdict and judgment passed for plaintiff. Defendant moved for a new trial, which was granted, and from the order granting the motion plaintiff appealed.

The main question to be determined herein arises on the complaint. The averments of the complaint set forth that, prior to the first day of August, 1878, George F. Sharp and

AX. ST. REP., VOL. XXI.- 2 17

Julius C. McCeney were attorneys at law, practicing their profession in the city and county of San Francisco; that in August, 1878, Mrs. Volina E. Harrigan was the owner of and claimed an interest in the estate of Eliza Haskell, deceased, which claim was contested by other persons, and required the services of attorneys at law for its enforcement; that, about the time last mentioned, Sharp and McCeney agreed with one William L. Bolte that if he, Bolte, would procure Mrs. Harrigan to employ them as attorneys at law in the matter of her interest and claim, above mentioned, he, Bolte, should be entitled to and should have one third part of whatever should be received by them, or either of them, by reason of and under said employment; that thereupon Bolte procured Mrs. Harrigan to employ them as attorneys at law in the matter of her interest and claim; that, in pursuance of the arrangement thus brought about by Bolte, Mrs. Harrigan entered into a contract with Sharp and McCeney, whereby, in consideration of their professional services to be rendered in and about her said interest and claim, she agreed to give them one third part of whatever share of the estate of Mrs. Haskell she might become entitled to or receive by way of compromise or otherwise; that Sharp and McCeney duly performed all the conditions of their said contract, and by such services she became entitled to a large amount of property, a part of the estate aforesaid; that Mrs. Harrigan thereupon agreed upon a certain sum of money to be paid Sharp and McCeney in satisfaction of their claim against her under the contract above stated, which they agreed to accept; that, in pursuance of this agreement, Mrs. Harrigan executed to them a promissory note for the sum of $14,400, bearing date the thirty-first day of January, 1880, payable two years after its date, with interest at the rate of seven per cent per annum; that to secure the payment of this note, Mrs. Harrigan, with others, executed to Sharp and McCeney a mortgage upon certain real property; that afterwards McCeney assigned all his interest in the note and mortgage to Sharp; that the note and mortgage were subsequently sold by Sharp for the sum of $17,964.18, which was paid to him; that no part of said sum of money was ever paid to plaintiff or his assignor, Bolte.

Other averments are made in the complaint, setting forth the relations of the parties, and material to show plaintiff's right to maintain this action, but as they have no bearing on the question necessary to be determined herein, need not be

stated. On the trial, the plaintiff having put in his evidence and rested, the defendant moved for a nonsuit, on the ground, among others, -1. That the alleged contract between McCeney and Sharp and Mrs. Harrigan is against good morals and public policy; and 2. That the alleged contract between Sharp and McCeney and William L. Bolte is against good morals and public policy. The motion was denied, and the defendant excepted. A verdict having been rendered for plaintiff, defendant moved for a new trial on a statement. In it he assigns as an error of law occurring at the trial, and excepted to by him, the denial of his motion for a nonsuit. On the hearing of the motion for a new trial, the court granted it "on the sole ground as appears from the transcript] that the contract sued upon is contrary to public policy." As above stated, the motion for a nonsuit bas reference only to the contract alleged, and the error of law set out in the statement is of the same import. The contract is alleged in the complaint alone. The motion for a nonsuit must then be determined on the allegations of that pleading. The court must have granted the new trial for the reason that the contract set forth in the complaint was contrary to public policy, for from the complaint only can we ascertain the contract sued on. And here we may remark that, according to the well-settled practice, the court below could not, in passing on the motion for a new trial, go beyond the grounds on which the new trial was asked; and in holding the action of the court to have reference only to the contract set forth in the complaint, we confine the course pursued by the court to the contract alleged therein, and to the grounds on which the defendant asked for a nonsuit. From the foregoing it is clear that, in passing on the question as to the character of the contract, the court is limited to what is stated by plaintiff in setting forth his cause of action, and that the evidence introduced on the trial cannot be considered.

But it is argued by counsel for appellant (plaintiff below) that on an appeal, as this is, from an order granting a new trial, the sufficiency of the complaint cannot be considered. To support this contention counsel make reference to several cases decided by this court, viz.: Spanagel v. Dellinger, 38 Cal. 283; People v. Turner, 39 Cal. 372; Mason v. Austin, 46 Cal. 385; Jacks v. Buell, 47 Cal. 162; Onderdonk v. San Francisco, 75 Cal. 534; Wheeler v. Kassabaum, 76 Cal. 90.

In the cases cited the question presented is entirely unlike

the one presented here. In this case the defendant moved for a nonsuit on grounds that challenged the sufficiency of the complaint, in that it set forth a contract on which an action could not be maintained. The nonbuit was denied, and an exception was regularly reserved. The defendant then found himself in a position where he had a right to have the ruling of the court on his motion reviewed on a motion for a new trial. The ruling of the court on defendant's motion for a nonsuit, and his exception thereto, could be set forth in a statement or bill of exceptions as an error of law occurring at the trial, and there excepted to by him that it might be reviewed as above set forth. This right was assured to him by the provisions of the statute: Code Civ. Proc., sec. 657, subd. 7, secs. 658, 659. On the hearing of the motion for a new trial, the court a quo had an opportunity of reversing its former action. If it approved its previous ruling, the motion for & new trial would be denied. If its previous ruling was, in its judgment, erroneous, it was empowered to recall it and grant a new trial. On such hearing it was in the line of the regular procedure to confirm its former action or disapprove and recall it. Such course the law sanctions as applicable to all errors of law. An error committed in passing on a motion for a nonsuit constituted no exception to the rule.

Whether the court denied or granted a new trial, its action was subject to be revised on appeal. The plaintiff had a right to appeal from the order granting a new trial, and his appeal would bring before the court the action of the court below as to every question germane to the inquiry whether the lower court's action was in accordance with law or not. If the court below had, on the trial, committed an error for which it was proper, on its being regularly brought before it, to grant a new trial, this court would approve and affirm the action of such court in granting such relief. If, on the contrary, no such error had been committed, if the court below had on the trial before it ruled correctly, this court would, in accordance with such view, hold the order granting a new trial erroneous, and reverse it. This is the usual course of practice in the courts of this state, and we see nothing in it foreign to the procedure prescribed by law. It has been a practice, not unusual in our courts, to ask a trial court to instruct the jury, when the complaint did not state facts sufficient to constitute a cause of action, to find a verdict for defendant. Whether given or refused, such ruling could be reviewed on motion for a new trial; and on the hearing of this latter motion, whether favorable or adverse to the motion, an appeal could be prosecuted from the order granting or refusing the new trial, and the action of the trial court passed on in this court, and either approved or set aside. We see nothing irregular here in having the question made on the motion for a nonsuit considered and passed on in this court, though it does go to the sufficiency or insufficiency of the complaint. The question comes before us in the regular course of procedure, and the legal exigencies of the case demand that it be considered and determined. If this court failed to pass on the point, it would in effect hold that there was error of law occurring at the trial, and there excepted to, which could not be reviewed on a motion for a new trial, and that, too, when the statute regulating the procedure in our courts had provided that all such errors should be so reviewed. There is nothing in the cases cited by counsel for appellant in conflict with what is stated above. In our judgment, the question is regularly presented here for decision, and the respondent is entitled to have it determined.

Is the contract set forth in the complaint contrary to public policy or good morals? Such is the question presented to us for determination. That contract is in substance this: A third person, not an attorney and counselor at law, enters into an agreement with an attorney and counselor at law that he will procure his employment by a litigant, and that in consid. eration of such procurement he is to have from the attorney and counselor so employed one third part of whatever remuneration the attorney receives for his services from the litigant. Is such a contract void, as contended, is the point presented for consideration and decision. Courts are justified in declaring a contract void as against public policy, when it is expressly or impliedly forbidden by the paramount law, or by some principle of the common law, or by the provisions of a statute. As said by Chase, C. J., in the License Tax Cases, 5 Wall. 469: “This court can know nothing of public policy except from the constitution and the laws, and the course of administration and decision.” The policy of the state "can be ascertained only by reference to the constitution and laws passed under it, or, which is the same thing, to the principles underlying and recognized by the constitution and laws": Lux v. Haggin, 69 Cal. 308. Though public policy is a doctrine on which courts and judges should proceed with caulion, still there are many cases to be found in the books of

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