Drais v. Hogan

By the Court: Upon considering the record and printed arguments upon which the cause was submitted, we are of opinion that neither the judgment nor the order denying a new trial should be disturbed here. 1. The payment by the husband of the female plaintiff of the judgment rendered against her, she being the owner of a separate estate, was in effect a payment made by herself— the husband being the agent appointed by law for the management of the separate estate of the wife, a payment made by him, in order to protect the separate estate from forced [126] sale, is, as to third persons, within the scope of his agency, and may be counted upon by the wife, or by the husband and wife, in an action against a third person, as a payment made by her. Besides, the only objection taken in argument in this respect points to the supposed insufficiency of the complaint, in that, after averring that the female plaintiff “was compelled to pay said judgment” (of Budd & Dudley against Lucinda Drais), it alleges that her husband, Madison Drais, paid it “for and on account of said Lucinda,” etc., without also alleging “at her request.” If there were anything in this objection, it could, at all events, be presented only upon special demurrer, which was not done in this case. It is claimed, however, that even a special request made by the wife to the husband, that he pay off an incumbrance upon her separate estate, and the payment made by him in pursuance of such request, cannot be relied upon in an action against a third party as having the effect of a payment made by the wife herself, and this because it is said that such a transaction between husband and wife would not establish the relation of debtor and creditor between them. But no force is perceived in this reasoning. What, if any, new legal relation would arise between the spouses because of such a transaction is of no concern to a third party, neither to the party receiving the payment, as Budd and Dudley in this instance, nor to Hogan, who is sued because of the necessity of the payment and the fact of its having been made. Had the husband placed the money in the hands of the wife, to be used by.her in paying off the judgment, and had the latter herself appropriated it to that purpose, the transaction as between the spouses would have been in substance the same as that appearing here, and in that case it would have been no concern of the defendant, and we think it no concern of his now as to whether the husband thereby became a creditor of the wife or not. 2. "Upon the question of fact as to whether the defendant was intrusted with the general conduct of the cause in the District Court, or was only employed to look after it “on the outside,” the evidence is obviously conflicting in sub [127] stance, and the finding below upon that point concludes the defendant upon this appeal. 3. It is argued that as the complaint counts only upon the neglect of the defendant to conduct the cause properly in the District Court, and inasmuch as it was shown that in that court he had obtained an order granting his client a new trial, and setting aside the judgment theretofore rendered against her, the action of this Court subsequently had, by which the order was reversed and the judgment restored, is not attributable to his neglect, but, if to the neglect of any one, to that of other counsel by whom alone the female plaintiff was represented on the appeal. But this position is not to be maintained. The facts were that the new trial appeared by the record to have been granted by the District Court without any motion therefor, and the application was not supported by any agreed or settled statement, nor by affidavits filed, nor did the record contain any specifications of grounds upon which the motion was rested. (Budd v. Drais, ante, p. 120.) Upon such a record brought here upon appeal, the order granting a new trial could not be upheld, and it was accordingly reversed by this Court. The loss of the cause in this respect was plainly attributable to its mismanagement in the District Court in the respects indicated, for the record was made in that court, and upon the transcript filed here no amount of learning or diligence upon the part of the counsel for the respondent in this Court could have availed to avert a reversal of the order granting a new trial. The order which Hogan obtained in the District Court, granting his client a new trial, was, therefore, owing to the practice he pursued in obtaining it, utterly valueless to her—in fact, it was a positive damage to her interests, inasmuch as it compelled her to incur additional costs upon appeal taken from the order, and without any reasonably well-grounded hope of success upon her part. 4. But assuming that the defendant had the management of the cause in the District Court—and in view of the implied findings below, we must assume that he did—the grossest mismanagement after all is found in his failure to appeal from the judgment itself. The complaint of Budd and [128] Dudley, upon which the judgment against Lucinda Drais was founded, was radically defective, and wholly insufficient to support that judgment. An appeal from the judgment itself would have brought up the pleadings as being part of the judgment-roll, and must have terminated in a virtual defeat of the action. An inspection of the record in that cause, in view of the uniform decisions of this Court, from the case of Rowe v. Kohle (4 Cal. 285), to the present time, as to the capacity, or rather the want of capacity, of a married woman to bind herself by such a contract as was alleged in that case, is decisive upon this point. In this view it was inexcusable in the defendant to have permitted the time limited by statute for an appeal from the judgment itself to pass away, and so to allow the rights of the defendant in that action to become lost in the abortive attempt to obtain a new trial, when such new trial, even had it been properly obtained, was not necessary for her protection under the circumstances of the case. In the case of Gambert v. Hart (44 Cal. 542), the rules of law governing the responsibility of attorneys to their clients in the conduct of causes are enunciated, and this case is clearly within the principles of that case. Judgment and order denying a new trial affirmed. A rehearing was granted, and after reargument the following opinion was delivered: By the Court: On reargument it was insisted by counsel for defendant (appellant) that the judgment of the District Court should be reversed, because the plaintiffs herein could have suffered no damage by reason of the neglect of the present defendant as attorney in the action of Budd and Dudley v. Drais and Drais; and this, because, under the law of this State, Lucinda J. Drais had power as a married woman to make the contract set forth in the complaint in the last-named action. It does not appear in the transcript in the present case that the said Lucinda ever in fact entered into the contract [129] referred to. It is immaterial to inquire, therefore, whether, if she had made it, she would be bound by its terms. Judgment and order affirmed. Remittitur forthwith.