Hopkins v. Mallard

Opinion by Greene, J. Hopkins sued Mallory in the district court of Jackson county, in assumpsit,for professional services as attorney at law, in the district and supreme courts. The intervention of a jury was waved by the parties, and the issue submitted to the court, under the plea of non-assumpsit. Verdict and judgment for the defendant. The bill of exceptions shows that a specific agreement ivas made by the parties for professional service in the district court, and that the stipulated sum for that service, was paid by the defendant to the plaintiff; The plaintiff’s bill of particulars contained a charge of $25, for attending to the same cause in the supreme court. He proved that he had prepared a written argument, and all necessary-papers in the case, and that he had employed James Crawford^ Esq., to appear in this court; but it does not appear by the testimony that there was a special request by the defendant to the plaintiff to attend to the suit; and no evidence adduced showing" that the defendant at any time recognized the plaintiff as his attorney in this court. In the absence of testimony, showing such request or recognition on the part of the defendant, we can see no error in the decision of the court below. The plaintiff had been employed for a specific purpose ; he rendered the service and received the pay as per agreement. Haying been retained to attend to the suit in a particular court, it cannot be inferred as a necessary sequence, that he was requested 'to attend to the same suit in the appellate court. Such an inference would often subject, parties to great abuse and injustice. The interest involved in the trial below, is [120] often of too trivial a nature to justify the expense of bringing the cause to this court, even if attended with the most successful result; and therefore without showing some act distinctly implying a retention of counsel in the supreme court, or authorizing him to take the case up, his charges for service therein should not be recognized. In the case of Dearborn v. Dearborn, 15 Mass., 316, referred to by plaintiff’s counsel, we see nothing conflicting with the decision of the court below, in this case. In that case the attorney was employed and undertook to collect a debt; it was justly held that he was bound to sue out all process necessary to that object. In the other cases referred to by counsel, the retainer appears to have been of a general, and not, as in this case, of a special character. The principle involved in the case of Hotchkiss v. Le Roy and Rogers, 9 John., 142, is particularly applicable to the question before us. Hotchkiss the attorney proved the service; and that he was recognized as the attorney by the opposite party in the suit in which the service was rendered, but gave no evidence that he was employed by Le Roy and Rogers. It was decided, that though hardly to be presumed that the suit was commenced and prosecuted without their consent; but still that evidence ought to have been offered to the jury, to justify them in forming such a conclusion; that some recognition of the attorney in the progress of the suit, might easily be shown; and without such proof it would be unjust, and a dangerous precedent to make a party liable. Judgment affirmed.