75 Wis. 8 | Wis. | 1889
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 ob-
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
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
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
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
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
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
By the Gourt.— The judgment of the circuit court is affirmed.