44 Cal. 542 | Cal. | 1872
The negligence imputed to the defendant is, first, his failure to file and serve a proper notice of the motion for new trial; second, his submission of the motion before the statement in support of it had been settled or agreed to. At the trial the plaintiff called the witness, Benham, to prove that these acts amounted to negligence in the defendant, as an attorney. But the Court excluded the evidence, and this ruling is assigned as error. The witness was not called to prove any fact in the case, and his evidence, if admitted, would have been only an expression of his opinion as an attorney, that the alleged acts or omissions of the defendant amounted to negligence in law. This was a question for the Court, and not for the witness to decide. The facts «being admitted or proved, it was a question of law for the Court whether they establish negligence in the defendant. The evidence was properly excluded. The plaintiff also offered in evidence the remittitur from this Court in the case of Quivey v. Baker, but the Court excluded it on the ground that it would take judicial notice of the decisions of this Court. If the Court erred in excluding the evidence, it was an error which did the plaintiff no harm. We must presume that the Court did take judicial notice of the decision, as it announced it would do, and that the plaintiff had the benefit of it as fully as though the evidence had been admitted.
The only other ground of error relied upon is, that the evidence was insufficient to justify the decision and judgment. But there is a substantial conflict in the evidence on the question whether the defendant was retained or relied upon to conduct the case as the attorney, or only volunteered, without a retainer, as counsel to consult and advise with another attorney charged with the defense. The defendant testifies that the written contract between the plaintiff and
Judgment affirmed.
Mr. Justice Wallace, having been counsel in the Court below, did not sit in this case.
Mr. Justice Rhodes dissented.
• After rehearing, the following opinion was filed at the October Term, 1872:
The Court below did not base its decision in favor of the defendant on the ground that he had not been retained by the plaintiff to conduct the defense of the action to Quivey v. Gambert. On the contrary, it directly appears from the opinion of the Court (which escaped our attention at the former hearing, because it formed no part of the printed transcript as originally filed, and was only a manuscript copy subsequently permitted to be filed) that the defendant was retained and did, in fact, conduct the defense of that action. Yor does the Court find that the defendant conducted the defense with proper skill, care, and diligence, but that he conducted it “ honestly to the best of his knowledge and
The appeal which the plaintiff prosecuted was dismissed, it appears, at the same term at which Hahn v. Kelly was decided, because of defects in the statement, which prevented us from considering the appeal on its merits. If we had been at liberty to look into the merits of the case it may be that it would not have been decided until after the decision of Hahn v. Kelly, or, if decided before, the presumption is it would have been decided in accordance with
The rule firmly established in this country by the weight of authority is that an attorney is bound to use ordinary skill and care in the course of his professional employment.
In the late work of Shearman & Bedfield on Negligence, section two hundred and twelve, it is said: “ The true rule of liability undoubtedly is, that an attorney is liable for a want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.” This is the principle recognized in Wilson v. Russ, 20 Maine,
Applying this rule to the present case, we are of opinion that upon the facts disclosed by the record, the defendant did not conduct the plaintiff’s case with ordinary care and skill, in submitting the motion for a new trial without a certified statement to support it. The statute, which had been in force for many years, not only required such a statement, but there had been numerous adjudications of this Court, showing the necessity of a statement of that character, in order to enable the Court to hear and decide a motion for new trial in such a case as Quivey v. Gambert on its merits. That such a statement was necessary in such a case was well understood by the profession, and it had been for many years the practice to prepare such statements in similar cases. In omitting to perfoi m his duty in this respect, the defendant, as the facts are here presented, was guilty of negligence, or betrayed great want of skill in his profession.
Judgment reversed and cause remanded for a new trial.
Mr. Chief Justice Wallace, having been of counsel in the Court below, did not sit in the case.