281 P. 407 | Cal. Ct. App. | 1929
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *60 This appeal is from a judgment for the plaintiff for attorney's fees. The complaint set up three causes of action, the first alleging the performance by plaintiff of legal services of the reasonable value of $2,145.42, of which sum $319.75 had been paid, the second an open, mutual and current account and the third an account stated. The answer consisted of specific denials as to each cause of action, and as a separate defense "and by way of counterclaim" it set up alleged negligence on the part of respondent while acting as appellant's attorney, claiming that by reason thereof the latter had been damaged in the amount of $2,000.
The court found that the services had been rendered and were reasonably worth $1,030 and that $304.30 of that sum had been paid, leaving a balance due of $725.67. With this finding appellant has no quarrel except that he points out an obvious error in the figures, the complaint having admitted a credit of $319.75, which would make the balance due $710.25. Respondent concedes this point. A reversal is sought by appellant for reasons which we shall discuss seriatim.
[1] The first contention advanced has to do with the allowance of interest on the sum found due, amounting to $163. The finding of indebtedness was solely upon the cause of action pleading a quantum meruit. There was therefore no support for the finding that "said sum of $725.67 became due and payable on the 17th day of February, 1923, and that plaintiff is entitled to have and recover interest on said sum from said date." "In an action to recover the reasonable value of services performed by a plaintiff, the amount, character and value of which can only be *61
established by evidence in court . . . the plaintiff is not entitled to interest prior to verdict or judgment." (Swinnerton
v. Argonaut Land etc. Co.,
We glean from the ill-prepared record before us that the court below attempted to cure this error as well as that in the computation of the credit due to appellant, since we find in "Plaintiff's Bill of Exceptions" (but not elsewhere in the transcript) reference to an order denying a motion for new trial "upon plaintiff's failing consent to a reduction of judgment as follows: $163.00 interest as of date of entry of judgment, $15.45 error in computation of credits" and providing that "unless such consent is filed in five days after notice of this order, motion for new trial is granted." But as to whether or not such consent was filed or as to the date of the order, the record before us is silent.
[3] Appellant's second point is that the court failed to find on the issues presented by the counterclaim (which appellant also refers to as a cross-complaint) and the answer thereto. The only finding as to the counterclaim is as follows: "The court further finds that all the allegations contained in the complaint of the plaintiff, the answer and counterclaim, or cross-complaint of the defendant, and the answer of the plaintiff to counterclaim, or cross-complaint of defendant, inconsistent with the foregoing findings of fact are untrue." This is not sufficient as a finding. The allegations of the counterclaim as to respondent's alleged negligence and the damage to appellant caused thereby are not necessarily inconsistent with the fact of rendition of legal services by respondent and the indebtedness of appellant therefor. Findings of fact should be definite and certain. (DeCou v. Howell,
Appellant earnestly asserts that "sufficient evidence was produced by the defendant to establish a prima facie claim for damages on account of the defendant's counterclaim or cross-complaint, which said damages were not found by the court," and that if there had been a finding on the issues presented by the counterclaim the amount of respondent's recovery would inevitably have been diminished if not entirely *63 eliminated. He also complains of numerous rulings of the trial court on questions of the admission or exclusion of evidence.
[4] Respondent with equal fervor contends that the counterclaim fails to state facts sufficient to constitute a counterclaim or cause of action, that there was no evidence which would have justified or supported a finding in appellant's favor, and hence that this is a proper case for the application of the rule that failure to find upon an issue raised by answer or cross-complaint is not reversible error where, if the finding had been made, it would necessarily have been adverse to the appellant. (Reveal v. Stell,
[5] We think the counterclaim, while somewhat carelessly drafted, contained sufficient facts to raise an issue as to respondent's alleged negligence and appellant's claim of loss therefrom. Stripped of its unessentials it alleges that "as such attorney the plaintiff counseled and advised with defendant and represented defendant in certain collection cases"; that "the advice and counsel given by plaintiff was wrongful . . . and that the plaintiff was careless and negligent in the handling of defendant's affairs," and that by reason of this defendant was subjected to a series of criminal and civil actions, to his loss and damage in the sum of $2,000. [6] This was a sufficient pleading of negligence, which may be alleged in general terms without specifying the particular act or omission which rendered the conduct negligent. (Stein v. United Railroads,
[7] The questions as to the sufficiency, or lack, of evidence relating to the issues tendered by appellant's pleadings, as well as those having to do with the trial court's rulings on evidence, we are precluded from considering on this appeal by reason of the condition of the record before us. The appeal is taken under the original method, which requires the preparation and inclusion in the record of a bill of exceptions when it is sought to review the evidence and the rulings thereon. (Sec. 950, Code Civ. Proc.) The requirements as to the contents of such a bill, the time *64 within which it must be served on the adverse party, the time and method of proposing amendments thereto and of presentation thereof to the court for settlement are set forth in section 650 of the Code of Civil Procedure, which further provides that after settlement of the bill of exceptions by the trial judge "the bill must thereupon be engrossed and presented to the judge to be certified, by the party presenting it, within ten days." There are few, if any, of the requirements of this section which appear to have been complied with in this case.
[8] The transcript on appeal, in addition to the judgment-roll which shows that the judgment appealed from was entered May 10, 1926, and that the notice of appeal was filed May 17, 1926 (there is no indication of service thereof on the respondent), contains two documents styled respectively "Bill of Exceptions" and "Plaintiff's Amendments to Defendant's Bill of Exceptions." These are followed in the transcript by an order reading as follows:
"It is hereby ordered that the foregoing Bill of Exceptions and Amendments thereto be, and the same is hereby settled and approved and I hereby certify that the same constitutes the Bill of Exceptions on appeal herein of the defendants therein named.
"Dated: October 28th, 1926.
"P.E. KEELER, "Judge of the Superior Court."
The "Bill of Exceptions" is signed by counsel for appellant but is accompanied by no proof, by affidavit of service, admission of receipt of copy or otherwise, that it or a copy thereof was ever served on the adverse party as required by the code section last referred to. The document styled "Plaintiff's Amendments," etc., is equally devoid of any indication of service on defendant. The transcript following the court's order above set forth contains the following: "Endorsed: Filed Oct. 28, 1926. L.E. Lampton, County Clerk; by J.D. John, deputy." There is nothing specific to indicate what this refers to, but we may be justified in assuming, from the order immediately preceding it and from the clerk's certificate, that it refers to both of the documents we are discussing. *65
Apart from the unexplained lapse of more than five months' time between the filing of the notice of appeal and the order settling the "Bill of Exceptions and Amendments Thereto," no engrossed
bill of exceptions has ever been filed. The situation here is almost identical with that in Fritsch v. Stampfli,
In Vierra v. Fontes,
It also contained what appeared to be defendant's proposed amendments. This was held not to comply with the requirement that after having been settled "the bill must thereupon be engrossed and presented to the judge to be certified, by the party presenting it, within ten days" (sec. 650, Code Civ. Proc.). Said the court: "The bill of exceptions as completed by the amendments was not engrossed, and, of course, there was no engrossed bill certified by the judge — which has been held necessary by numerous decisions of this court. (Fritsch v. Stampfli,
[9] Because of the trial court's failure to find upon the issues tendered by the counterclaim and the answer thereto, the cause must be remanded. There is no necessity, however, for a retrial of the issues as to the rendition of legal services by plaintiff as set forth in the complaint and as to the reasonable value thereof. As to these matters the judgment is modified by deducting from the amount thereof the sum of $163, interest erroneously allowed, and the further sum of $15.45, the difference between the credit admittedly due to appellant and the figures erroneously incorporated in the findings, thus reducing the amount awarded respondent to $710.25. As so modified that portion of the judgment is affirmed, subject, however, to whatever, if any, diminution of the amount thereof the court, on a retrial of the issues raised by the counterclaim and the answer thereto, may find and determine the defendant to be entitled to. For the purpose of a retrial as to such issues the judgment is reversed and the cause remanded.
Craig, Acting P.J., and Thompson (Ira F.), J., concurred. *67
A petition for a rehearing of this cause was denied by the District Court of Appeal on October 29, 1929, and a petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on November 25, 1929.
All the Justices concurred.