77 Neb. 556 | Neb. | 1906
By tbe judgment of the district court for Douglas county entered July 5, 1902, Prank E. Moores, mayor of tbe city of Omaha, was directed to sign a certain warrant, No. 53,327, for the sum of $1,600, payable to Samuel I. Gordon, and drawn by tbe comptroller of tbe city in part payment of the salary of said Gordon as police judge of tbe city of Omaha for tbe year 1901. Tbe judgment of the. district court was, on appeal taken by tbe mayor, affirmed by this court, and the warrant. thereafter duly executed.
If Eller, as attorney for Judge Gordon, had no authority to receive and receipt for the warrant in question, and to obtain the money thereon, then it is evident that some one is still indebted to the legal owner of the warrant for the amount thereof. Section 8606, Ann. St., provides,.among other matters, that an attorney has power “to receive money, claimed by his client in an action or proceeding, during the pendency thereof or afterwards, unless he has been previously discharged by his client, and upon payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment.” This statute is merely declaratory of the common law. The authorities are numerous and uniform that an attorney, by virtue of his retainer, may receive his client’s money in a case in which he is employed, and the act will bind his client, unless the party paying it had notice of a revocation of the attorney’s authority to act in the case. Ruckman v. Alwood, 44 Ill. 188; McGill v. McGill, 59 Ky. 258; State v. Hawkins, 28 Mo. 366; Yoakum v. Tilden, 3 W. Va. 167, 100 Am. Dec. 738. It is admitted that Eller was attorney of record for Judge
Complaint is made, as we understand from the appellant’s brief, that the court directed a verdict and entered judgment thereon instead of dismissing the jury and the plaintiff’s action. This requires us to consider what order should be entered on sustaining a demurrer ore terms to the plaintiff’s petition. The rule is well established that an objection to the admission of any evidence on the ground that the petition fails to state a cause of action may be taken at any time during the progress of the trial, and is not waived by answer or failure to demur. Curtis & Co. v. Cutler, 7 Neb. 315; Ball v. LaClair, 17 Neb. 39. This is undoubtedly the correct practice under our code. Section 94 of the code specifies the grounds upon which a demurrer to a petition may be interposed. Section 96 is as follows: “When any of the defects enumerated in section ninety-four do not appear upon the face of the petition, the objection may be taken by answer, and if no objection be taken either by demurrer or answer, the defendant shall be deemed to have waived the same, except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.” In Marriott v. Clise, 12 Colo. 561, 21 Pac. 909, the supreme court of Colorado, under a similar statute, sustained the district court in allowing a demurrer to the plaintiff’s petition on the ground that it did not state facts sufficient to constitute a cause of action after trial and verdict, and the authorities are quite uniform that the objection to the petition upon this ground may be raised at any time. Montgomery County Bank v. Albany City Bank, 7 N. Y. 459; Coffin v. Reynolds, 37 N. Y. 640. The effect of such an objection to the petition is not greater nor different from sustaining a demurrer filed before answer.
Upon sustaining a demurrer to the petition, if the plaintiff elects to stand thereon, or if he does not take
We have discussed the case upon the theory that a city officer may bind tbe city by tbe assignment of bis salary prior to tbe issue of a warrant therefor. We do not Avish to be understood as having examined this question or to have expressed any opinion thereon. We prefer to leave it open for further consideration, it not being necessary to a determination- of tbe case. Finding no reversible error in tbe record, we recommend an affirmance of tbe judgment.
By tbe Court: For tbe reasons stated in tbe foregoing opinion, tbe judgment of tbe district court is
Affirmed,