State ex rel. Hardy v. Gleason

Strahan, J., delivered the opinion of the court. The only question presented by this record for our consideration is, whether or not the defendant was bound to answer the questions propounded to him on his examination; in other words, whether his relation to Bigné as his attorney excused him from answering. 1. Section 712, Hill’s Code, provides: “There are particular relations in which it is the policy of the law to encourage confidence, and to preserve it inviolate; therefore a person cannot be examined as a witness in the following cases: * * * 2. An attorney shall not, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of professional employment”; and by subdivision 5 of section 1088, Hill’s Code, it is made the duty of an attorney to maintain inviolate the confidence, and at every peril to himself to preserve the secrets of his clients. But these provisions introduce no new principle into the law. They are simply declaratory of the common law. The defendant having answered that subsequent to February 13, 1889, he did have in his possession or under his control, money, check, certificate of deposit, promissory note, or other evidence of indebtedness, or other property belonging to the defendant Bigné, it was competent for the plaintiff to ask him what he did have and what disposition he made of the same. The facts necessary to make proper answers to these questions were not privileged. The authorities are very full and direct on this question and their citation is decisive of the ease against the appellant. Jeans v. Fridenberg, 3 Penn. L. J. Rep. 65; Williams v. Young, 46 Iowa, 140; Andrews v. O. & M. R. R. Co., 14 Ind. 169; Brandt v. Klien, 17 Johns. 335; in re Bliss, 386-38 How. Pr. 79; Rundle v. Foster, 3 Tenn. Ch. 658; Graham v. O’Fallon, 4 Mo. 338; Hager v. Schindler, 29 Cal. 48; Duffin v. Smith Peakes, N. P. cases, 108; Dudley v. Beck, 3 Wis. 274; People ex rel. Mitchell v. The Sheriff of N. Y. 29 Barb. 622; Fulton v. Maccracken, 18 Md. 129. [163] The appellant’s counsel has presented a carefully-prepared brief and has cited numerous authorities in support of his contention; but they only refer to various applications of the same rule already mentioned, and I deem it unnecessary to refer to those authorities more particularly. They in no manner conflict with the principles already stated. It follows that there was no error in the judgment appealed from and it must be affirmed