Evans v. Watrous

By Mr. Justice Hitchcock This was an action brought by Evans vs. Watrous, in the Circuit Court of Shelby county, for negligence as an attorney. There was a demurrer to the declaration, which was sustained, and judgment was rendered against Evans, and one Uriah Jordan, as his security for costs. The declaration states, that the plaintiff below, had placed in the hands of the defendant, a certain writing obligatory, signed by one Benjamin May, dated 23d January, 1826, for two hundred dollars, payable 25th December, 1826, in favor of, and endorsed by one Jesse J. Evans; that it was also endorsed by one Allen L. Mann and byqne Isaac Hutchison, who delivered it to the plaintiff; that the said defendant undertook to collect said writing obligatory, as an attorney at law, for a reasonable reward; that he commenced suit, and obtained judgment against the pay- or of the instrument, at the August term, 1827, of the Circuit Court of Shelby county ; but, that “ he wholly failed and neglected, at an early period after the rendition of the judgment, to take the proper and necessary means to have the said judgment executed by collecting from said May, the amount of the judgment and costs,” &c.; that if he had “ used due and proper diligence in suing out and prosecuting at an early period after the rendition of the said judgment, the proper and legal writ of execution, necessary to carry the said judgment into effect; that the amount of the debt and costs would have been collected from the said May, for that he was, at the time solvent;” but, that before the defendant used the necessary means to have the judgment collected, the defendant became wholly, insolvent. The declaration further aversr that after the insolvency of May, the plaintiff instructed the defendant, so being his attorney, to prosecute [209] suit against Jesse J. Evans, the payer and first indor-ser of .the instrument, and that he undertook to do the same, with all the necessary and proper skill and diligence of an attorney * hut, that he “ negligently and improvidently, on the 27th October, 1828, issued a writ of cap. ad respondendum, from the Circuit Court of Shelby county, against said Evans, on said instrument, and at the Fall term of said Court, he contrary to his duty and undertahing as aforesaid, dismissed the said suit, whereb}'- a judgment-was rendered against the- plaintiff for costs, and that if the said suit had been correctly and skilfully 'commenced, and faithfully and diligently prosecuted, and had not been dismissed by the defendant; that he, the plaintiff, would have been able, and would have proved all facts and things necessary to have recovered judgment against the said Evans, for the amount of the debt, and that the same could and would have been collected, for that the said Evans was then solvent: but that shortly after, and before a new suit could be made effective against him, the said Evans removed himself and his effects, into the county of Perry, and shortly after, beyond the limits of this State, and the United States, leaving behind him no property from which the money could be made, and so the plaintiff avers, that by the negligence, and unskilful, and improvident'management of the said suits, he hath lost his debt,” &c. It is contended, on the, part of the plaintiff in error, that this declaration contains substantially two counts; that the charge of negligence, in not collecting the money on the first judgment, is properly stated in one count, and that the charge of negligence, improvidence, and unskilfulness in commencing and dismissing the second suit, is properly a second and distinct count, and that the Court ought so to consider it; but [210] that if the declaration shall be considered as one connected history of the transaction, the matters- stated are sufficient to call upon the defendant for his de¿ fence, and that the demurrer dught not to have been sustained.. By the defendant’s counsel, it is contended, that the declaration contains but one count — that there are matters set forth, proper for two counts, if for any; that it-‘is therefore bad, for duplicity ; that if the Court do not sustain the demurrer for this cause, he com tends, that the matters set forth, do not amount to such a charge of negligence or unsldlfulness, as will sustain an action for damages; that, as to the first suit, it is not the business of an attorney to see that an execution is issued, that being the duty of the clerk* under the laws of the State,, and that the clerk is liable in such case; that, as to the second suit, there is no specific ground of negligence charged ; that an attorney is only liable for gross negligence, which is not charged in this case. Without undertaking to decide whether this declaration is to be considered as containing one or two 'counts, this Court has held that, under our statute, ’which prohibits special demurrers, where there is a clear and substantial cause of action set forth in a declaration, though it may contain irrelevant or super-flous matter, or though it may contain duplicity, yet, that the defendant shall be held to answer it. As it respects the misconduct of an attorney, and what acts and omissions will make him liable, it may be remarked, that he is only bound to use reasonable care and skill, in managing the business of his client.a If he were further liable, no one would venture to act in that capacity. He is not liable unless he has been guilty of crassa negligentia. This, however, is usually a question of fact for a jury ;b and is to be ascer [211] tained by the evidence of those who are conversant with the same kind of business.a In die case under consideration, the defendant is charged with having omitted the proper and necessary means to have the judgment collected, and that if he had used due diligence in suing out and prosecuting a legal writ of execution, the money could have been made. That it is the duty of the clerks to issue the executions immediately after Court, is. admitted ; and that, in general, it is the duty of the-attorney to see that the clerks do their duty, will not be contended; but that there may not be circumstances which would require the care and attention of the attorney, after judgment, and the omission of which might render him liable,* is more than the Court is prepared to say: As to the second suit, the defendant is directly-charged with negligently commencing it, and improperly dismissing it, contrary to his duty. This, is certainly a charge, which -unexplained, amounts to gross negligence, and is such as requires a defence. The undertaking of a suit, implies a faithful and diligent prosecution of it; and where it appears by the declaration, that there was a good cause of action, the attorney is bound to shew some reasonable excuse for not conducting it to a successful termination. • It-is, therefore, the opinion of the Court, that, under the circumstances of this case, there is sufficient matter charged in this declaration to put the defendant to 'his plea; and that a jury, under the evidence, and a proper charge from the Court, as to the general principles upon which the responsibility of attorneys is'' based, and the practice of the bar, in the conducting of suits, is the proper tribunal to settle the defendant’s liability. The judgment must, therefore, be reversed, and the cause remanded. Footnotes [a] Burr. 2060. 3 Camp. 17, 19 [b] 4 Barn. and Ald. 203-3 Barn. & Cres. 299. [a] 2 Wils. 328: 6 Bing. 460.