Lewis v. Tilton

Rothrock, J. O. D. Hendershott was counsel for the plaintiff in the court below, and had the principal management of the case. The defendants claim that, after the case was disposed of in the district court, they handed over to Hendershott certain subscriptions to the club, in compromise and settlement of the claim of the plaintiff, and that Hender-shott accepted the same for the plaintiff and as a compromise, and collected part of the subscriptions for the plaintiff; that the plaintiff accepted and. ratified this settlement, and is bound thereby. On the other hand, the plaintiff protests that he had no notice of any such, an arrangement; that Hendershott had no authority to mate such a settlement, and that he received no part of the subscriptions from Hendershott. A large number of affidavits have been filed by the parties, and every fact and proposition submitted in the motion is supported and contradicted by the affidavits. It is true, all parties concede that the subscriptions were turned over to Hen-dershott. The defendants claim that they were delivered to him for the plaintiff as a compromise of his claim. Hender-shott claims that he received them for collection as the attorney of the defendants. There is no writing signed by any of the parties in regard to the matter in controversy. In this state of the record, we cannot dismiss the appeal. In order to justify the determination of an important right upon mere affidavits, the matter in controversey should not be left in doubt. It should clearly appear that appellant has no further [102] right to prosecute the appeal, in order to justify this court in thus disposing of the ease. If this appeal should be prosecuted, and the judgment of the district court reversed, the defendants can then interpose any defense they have to the plaintiff’s claim, whether it was before or after suit commenced, and such defense can be tried in the usual manner, by jury, and by an examination of witnesses in open court. It is also claimed that the appeal should be dismissed on account of the delay in it's prosecution. This we think is sufficiently excused by the showing made by appellant. Motion Overruled.