78 Ind. 225 | Ind. | 1881
Samuel Bender, the appellee, was sued by Eliza Wright, and judgment rendered against him on the 25th day of June, 1872, by the Allen Circuit Court. Appellant’s intestate was the attorney of the appellee in the action. Eighteen months after the judgment was rendered, money was placed in the hands of the intestate, by appellee, for the purpose of paying the judgment. The money was paid to William S. Edsall, then the clerk of Allen county, and a proper entry of satisfaction was made upon the judgment docket by Edsall. Appellee knew that the money had been paid to the
Appellee made claim against the estate represented by the appellant, and obtained judgment, from which this appeal is prosecuted.
Payment to the clerk of the Allen Circuit Court was not a satisfaction of the judgment against the appellee, nor was it payment to the judgment creditor. Under the statute in force in 1874, the clerk was not authorized to receive money due upon a judgment. This was so ruled in Hays v. Boyer, 59 Ind. 341. A vigorous assault is made upon this case, and we are earnestly asked to overrule it. The arguments and authorities adduced are not of such strength as to incline us to even question its soundness, much less to move us from the rule of stare decisis. Substantially the same doctrine had been declared in an earlier case, that of Carey v. State, ex rel., 34 Ind. 105, for it was there clearly stated that a clerk had no right to receive money unless so directed by order of court, or so authorized by statute. Other cases had stated the question, but had not decided it. Prather v. State Bank, 3 Ind. 356; Armsworth v. Scotten, 29 Ind. 495; Jenkins v. Lemonds, 29 Ind. 294; Carey v. State, ex rel., 34 Ind. 105; Crews v. Ross, 44 Ind. 481.
A lawyer is liable for a negligent omission to perform a plain duty. Upon this ground rests the decision in Stott v. Harrison, 73 Ind. 17. In that case the duty was a plain one; there were no doubtful questions of law for decision, nor any conflicting mode of procedure to embarrass or mislead. A lawyer is not liable for every mistake. He is not liable for a mistake committed in matters where the law is doubtful and uncertain. “ God forbid,” said Abbott, C. J., “that it should
It is the duty of a lawyer to know whether public matters, such as the duties of the officers connected with the court in which he practices, are regulated by statute. A lawyer who does not know whether the duties of the clerk of the court in which his professional duties are performed are, or are not, de
"Was the intestate appellee’s attorney at the time the money was paid to Edsall ? The evidence does not shoAv the specific terms of the employment. The testimony of the only witness introduced by the. appellee is thus given in the bill of exceptions: “I am a son of the plaintiff. I paid Joseph D. Hillegass, since deceased, $50 in 1873, and $220 in 1874, to be applied on a judgment in favor of Eliza Wright against my father. I paid it for my father. Hillegass was my father’s attorney in the defence of the suit, and deducted $19.40 for fees.” We do not think that this shows that the deceased Avas, at the time the money Avas paid to him, and by him to the clerk, acting as the attorney of the appellee. The fact, that Hillegass Avas the attorney “ in the defence of the suit,” did not make him such in the payment to the clerk of the money placed in his hands. The general power of an attorney for a defendant ceases upon the entry of a judgment, finally terminating the litigation. Weeks on Attorneys, section 248; Bartholomew v. Langsdale, 35 Ind. 278. The general rule is, that when the duty ends the liability ceases. This
The utmost effect that can fairly be given the evidence is, that it shows that the money was received and paid out by the appellant’s intestate as the agent of the appellee. The case must, therefore, be considered as one against an agent, and not as one against an attorney. So considered, the evidence does not entitle the appellee to a recovery. The testimony of the witness to whom we have already referred, giveu upon cross-examination, was as follows: “ Sometime after the money was paid to Hillegass, Mrs. Wright sent over word that she wanted the money, and we sent back word that the judgment was paid. They came back again, saying it was not paid, and we told them it was. I went to Fort Wayne to see Hillegass. He told me it was paid over to the clerk; said he was busy then, but I could go over to the clerk’s office and see. X did not go then. The next time I went to town I again told Hillegass that Mrs. Wright claimed that the judg
Applying the laAV to the facts, it must be held that the court erred in denying appellant’s motion for a new trial.
Judgment reversed.
Worden and Woods, JJ., dissent.