41 Me. 436 | Me. | 1856
This action is brought by the plaintiffs, who are counselors at law, to recover compensation for professional services alleged to have been rendered by them for the defendants, as co-partners. Perkins, one of the defendants, is defaulted. Kelley, the other defendant, denies that he was
The facts before stated disclose no acts on the part of Perkins, such as will render Kelley liable; certainly, if not his partner, of which there is no evidence, unless the bringing
That the records of courts of justice, and recitals in writs and judgments are sometimes and for some purposes admissible in actions where the parties are not the same, is not to be denied. Thus, where two had been sued as partners and had suffered judgment by default, the record was held competent evidence, as tending to show that the defendants had held themselves out as partners to the world, in a subsequent action brought by a third person against them as such. Craigin & al. v. Carlton & al. 21 Maine, 492; Ellis v. Jameson, 17 Maine, 235.
So when the defendant in an action has made declarations or averments, in his writ in a former suit, against other parties, the record may be legally introduced for the purpose of showing his admissions. Parsons v. Copeland, 33 Maine, 370. In these cases, however, it will be perceived that the parties to the record, against whom it was offered, may properly be presumed to have had actual notice of the suits; they either brought the actions, or legal process must have been served upon them, and having notice, they must be regarded as having assented to or asserted the truth of the record. The mere fact, that the record and proceedings were in a court of justice, has never, to our knowledge, been held sufficient evidence of notice. All our statutes, requiring service of judicial process, are based upon the insufficiency of such notice. It is said by Greenleaf, in his work on Evidence, vol. 2, § 139, that, “ when a suit is by an attorney for fees, he must prove his retainer and the fees and services charged,” and he mentions various modes in which such proof may be made, but among them is no such mode as that
In the case of Foster v. Dow, 29 Maine, 442, it is said by Justice Wells, in the opinion of the Court, that “ the acts and doings of the attorney, who had the care of the suit, Earris against the plaintiff, in suing Earris for his services and obtaining judgment by default, and execution against him, could have nq effect upon the rights of the plaintiff. They were res inter alios. If Farris had notice of the suit they
According to the agreement of the parties, the plaintiffs are to discontinue against Kelley, he taking costs, but are to have judgment against the defendant Perkins.