Hooker v. Village of Brandon

Taylor, J. On the hearing in this court the learned counsel for the appellants claims the right to review the decision of the trial court in sustaining the demurrer to the first amended complaint. To this claim there are two objections : First. The plaintiffs did appeal to this court from said order sustaining the demurrer of the defendant to their amended complaint, and this court dismissed such appeal on the ground that they had waived their right to appeal from such order by filing an amended complaint after the order was made. See Hooker v. Brandon, 66 Wis. 498. This decision, according to all the authorities, is res adju-dicata in this case. Second. If the plaintiffs have waived their right to appeal from the order sustaining a demurrer to their com- ■ plaint, by filing an amended complaint in the action, upon which they ask the court to proceed to judgment, it follows that they have no right to question the order sustaining such demurrer upon an appeal from the judgment ob12 tainecl on such amended complaint. As is said by this court’in the opinion dismissing the plaintiffs’ appeal, “by amending their complaint they abandon in their action all claim for any matters not contained in such amended complaint.” They are estopped, therefore, from making any further claim in such action on account of those matters which are omitted from such amended complaint. This court has held that when a demurrer to a complaint or to an answer has been overruled, the party demurring may answer to the pleading demurred to, and by so doing he does not waive his right to review the order of the court overruling such demurrer. Douglas Co. v. Walbridge, 36 Wis. 643; Armstrong v. Gibson, 31 Wis. 61; Tronson v. Union L. Co. 38 Wis. 202; McKinney v. Jones, 55 Wis. 39; Moritz v. Splitt, 65 Wis. 441. These cases are not in conflict with the rule stated in Hooker v. Brandon, 66 Wis. 498. In the cases cited the party demurring abandons no right by pleading over after his demurrer is overruled, but the plaintiff to whose complaint a demurrer is sustained, by filing a new and amended complaint, and thereby asking of the court the privilege of proceeding to judgment upon such amended complaint, clearly abandons his right to be heard in that action in respect to those matters omitted from such amended complaint. In such case, if the plaintiff insists upon his right to recover upon a supposed cause of action which the court holds is no cause of action, he must let his complaint stand as his complaint in the action, and either suffer judgment to go against him on the demurrer and then appeal from that judgment, or appeal directly from the order sustaining the demurrer. The plaintiffs cannot be heard upon this appeal to question the correctness of the decision of the demurrer by the court below. That the attempt of the plaintiffs to amend their complaint on the trial, so as to reinstate the cause or causes of action which had been decided bad upon demur — 13 — rer, was properly refused, is manifest, and needs no further comment. Upon the trial before the referee the plaintiffs oifered in evidence their books of account as evidence of services performed and of money paid by them for their expenditures while performing services for the defendant. The defendant objected to the books as evidence in favor of the plaintiffs for any purpose. The referee admitted the books to prove all charges therein, except the charges for disbursements and expenses made or paid by Eli Hooker. Eli Hooker was not a witness on the trial. His health of body and mind was such as prevented him from appearing and testifying in the case. The plaintiffs excepted to the ruling of the referee excluding the books as evidence of the charges made by Eli Hooker for disbursements and expenses. This ruling is assigned as error upon this appeal. Whether this ruling was made by the referee on the ground that money paid out by the plaintiffs in transacting business for the defendant was not such a charge as could be proved by the introduction of their books of account, or upon the ground that C. E. Hooker, who was not present when such expenditures were claimed to have been made by Eli Hooker, could not make the proper proofs, under the statute, to make such books evidence of such charges, does not appear from the record. Secs. 4186, 4187, R. S., prescribe under what conditions and proofs the account books of a party to an action may be received in evidence in his favor. The last clause of sec. 4187 reads as follows: “Provided, that such books mentioned in this and the preceding section shall not be admitted as testimony of any item of money delivered at one time exceeding five dollars, or of money paid to third persons, or of charges for rent.” It is claimed by the learned counsel for the respondent that the money charged in said account for expenses of and disbursements made by Eli Hooker while engaged in the business of the defendant are — 14 — charges for money paid to third persons, within the meaning of said statute, and that the books were properly ruled out by the referee for that reason; and he cites Winner v. Bauman, 28 Wis. 563, as sustaining his claim. We do not deem it necessary to determine in this case whether the learned counsel is correct in his contention. By an examination of the findings in the case, it will be seen that the . referee has found that there was no special contract between the defendant and plaintiffs to pay them any fixed sum per day for their services in addition to their expenses, and he has also found that the services rendered by Eli Hooker, as charged in his account, were not of the value so charged, and has allowed for the services so charged a gross sum, saying nothing about his expenses. Such findings must be construed as fixing the value of such services, including any expenses he may have incurred for his travel and sustenance while performing the services. These findings cover all the charges for the services and expenses of Eli Hooker sought to be proved by the introduction of the account books, except two, which were not allowed either for services or expenses. If the referee was wrong in excluding the books as evidence of the expenses of Eli Hoolier, the plaintiffs are not injured by it, as the referee has found, upon sufficient evidence, that his services, including Ids expenses, were in each case a specific sum, and no mofe. A few of the charges for services were not allowed by the referee, and upon the evidence he seems to have been fully justified in rejecting such charges. It is also assigned as error that the court permitted Gen. Bragg, a witness for the defendant, who had conducted the prosecution of the action against the defendant village as attorney for the plaintiff in such action, to state what his charges for such prosecution were. If it be admitted that such evidence should have been excluded as incompetent upon the question of the value of the services of the plaint — 15 — iffs in defending the same action, it would not be such error as should reverse the findings of the court and referee upon the value of such services, when the record discloses that there is an abundance of competent evidence in the record to sustain such findings. It is also probable that the plaintiffs waived the objection by not renewing it when the deposition of Gen. Bragg was read in evidence on the trial. The objection appears in the deposition, but it does not appear that such objection was raised at the time the deposition was read upon the trial. Hill v. Sherwood, 3 Wis. 343; sec. 4092, B. S. Upon the questions of fact whether the referee and court allowed the plaintiffs a sufficient amount for their services in defending the action of Whitton v. The Village of Brandon, we think the evidence fully sustains the findings. There certainly is no such preponderance of the evidence in favor of allowing a larger sum as would justify this court in reversing such findings. After the case of Whitton v. Brandon was decided adversely to the village, and the judgment in such action had been perfected, it appears that the plaintiffs performed other services in preparing to take an appeal from such judgment to this court. The referee found the value of such services was the sum of $95, and he also finds “ that George A. Bussell, the village president, consented to allow the plaintiffs, as village attorneys, to take an appeal to the supreme court from the judgment in said action of Whitton v. Brandon." The referee and the court disallowed this claim for $95, on the ground that the proper authorities of said village had never directed nor authorized an appeal to be taken from said judgment by the plaintiffs, nor by any other parties. Under the findings of the court, the only authority the plaintiffs had to perform any services after final judgment against the defendant in the action of Whitton v. Brandon, was their original employment by the village to defend — 16 — such action. The allegations of the complaint in' regard to said action are as follows: “ That between the 1st day of July, 1883, and the 1st day of April, 1885, the said plaintiffs performed professional services as attorneys at law for and at the request of the said defendant, in and about the defense of a certain action then pending before the circuit court of Eoiid du Lac county, entitled David Whitton v. Village of Brandon, this defendant, and for which the defendant promised to pay the said plaintiffs.” The complaint, after alleging due authority on the part of the defendant to pay for such work and expenditures, sets-forth in a bill of particulars the specific services performed. This bill of items includes the charges for services performed after judgment against the village in the action in the circuit court, as well as those performed before judgment. The answer “ admits that the plaintiffs were employed by the defendant to conduct the defease of the village of Brandon in the action brought by David Whitton against said village, and that the plaintiffs rendered certain services for the defendant under and by virtue of said employment.” The answer denies that the account or bill of particulars attached to the complaint contains or is a statement of moneys necessarily disbursed by the plaintiffs in conducting said defense, or is a statement of services properly or necessarily rendered by the plaintiffs in conducting said defense. Upon those allegations in the complaint and answer, and upon the finding that the president consented to allow the plaintiffs, as village attorneys, to take an appeal to the supreme court in said action of Whitton v. Brandon, the referee and circuit court refused to allow pay for the services rendered in preparing to take such appeal. The plaintiffs claim, that it was error to refuse to allow for the services rendered after j udgment in the Whitton Case. It is claimed by them that, under their employment to defend such aotion — 17 — in the circuit court, they were authorized, in case of an adverse judgment in such court, without any further employment, to appeal from such judgment, unless expressly prohibited from so doing by the proper authorities of the village. They also claim that, if they are mistaken in regard to the extent of.their first employment, they are still entitled to recover for such services, because they were performed with the knowledge and assent of the proper authorities of said defendant. We think, upon authority and principle, an employment to defend an action pending in a trial court does not, under ordinary circumstances, authorize such attorney to take .an appeal-to a higher court from the judgment rendered against his client. Public policy and the rights of litigants ■require that their attorneys in such case, especially where they have easy aceess to their clients, should first consult their wishes upon the question of taking an appeal from the judgment rendered against them in the trial court, before incurring further expenses in such litigation. Any other rule would authorize an over-confident attorney to Inflict unnecessary costs upon his client in a case where the ■client was entirely satisfied to abide the judgment of the trial court. The following authorities cited by the learned •counsel for the respondent tend to establish this view as to the authority of the attorney under such circumstances: Covill v. Phy, 24 Ill. 37; Richardson v. Talbot, 2 Bibb, 382; Hinkley v. St. Anthony Falls W. P. Co. 9 Minn. 55; Jackson v. Bartlett, 8 Johns. 361; Walradt v. Maynard, 3 Barb. 584, 586; Weeks, Attys. § 238, and notes. The mere fact that the president of the village knew that the plaintiffs were preparing to take an appeal from the judgment rendered against the village does not, standing alone as it does in this case, amount to a consent by the proper authorities of the village that the plaintiffs should act for the village in preparing to take such appeal. It — 18 — might not be necessary that the plaintiff should prove by the records of the proceedings of the village that they were authorized to proceed to take an appeal from such judgment, but, in order to charge the village, it is necessary that they should prove that the constituted authorities of the village knew what the plaintiffs were doing in their behalf, and that they assented thereto. See 1 Dill. Mun. Corp. § 399, (3d ed.) § 479, and cases cited by the counsel for the respondent. By the Gourt.— The judgment of the circuit court is affirmed.