213 P. 446 | Mont. | 1923
prepared the opinion for the court.
This action was commenced by the plaintiff in the justice court of Superior township, Mineral county, to recover from the defendant the sum of $175 as the value of a cow hilled by the defendant company after injury by one of defendant’s trains; it being alleged that at the point of injury the track was unfenced. Defendant admitted a liability, denied that the value of the cow was $175, and offered to pay plaintiff in full settlement the sum of $100. Judgment was had by the plaintiff in the justice court for $175, $75 attorney’s fees, and $12 costs; the defendant appealing to the district court of Mineral county from the judgment. On July 7, 1921, the cause came on for trial in the district court, was tried to a jury, a verdict was returned in favor of the plaintiff for $175, and judgment was entered thereon. Thereafter a cost bill was served and filed containing, among other items, one of $75 as an attorney fee. Defendant moved to retax the costs by striking the item of attorney’s fees. The motion was denied. Defendant also moved for a hew trial, which motion was overruled. The case is before us on an appeal from the judgment and from the order overruling the motion for a new trial.
The important questions presented involve the allowance of attorney’s fees. By the terms of section 6544, Revised Codes of 1921, when an action is instituted for the recovery of loss
At the trial of the action in the district court the plaintiff introduced evidence of the reasonable value of attorney’s services in such an action. After the testimony was closed, plaintiff requested an instruction in the following language: “The jury are instructed that if they find for the plaintiff they may allow him judgment for such sum as may seem to them proper, not exceeding the sum of $175 for the cow, and they may also allow the plaintiff reasonable attorney’s fees, not exceeding the sum of $75.” This instruction the court refused to give, but modified the same by striking out the words “for the cow, and they may also allow the plaintiff reasonable attorney’s fees not exceeding the sum of $75.” Thereupon the defendant requested the court, among other instructions, to give an instruction as follows: “In this case the court instructs the jury not to consider the question of the amount of attorney’s fees.” This request was refused and no instruction was given thereon. No statement of the case was submitted, and there was no instruction defining to the jury the issues in the case.
Plaintiff was represented by a Mr. Walter H. Hanson, an attorney at law, residing at Wallace, Idaho. He had been duly admitted to practice before the highest courts in the state of Idaho, but had never been admitted to practice generally in Montana, or licensed to practice in Montana. After the testimony had been taken in the district court and the instructions settled, Mr. Gust Moser, an attorney at law, duly admitted and licensed to practice in Montana, moved that an order be made nunc pro tunc, entering the name of Mr. Hanson as attorney in this case. The court ruled: “The order will .be made, that is, in accordance with the motion.”
It is true that by the terms of section 8940, Revised Codes of
It will be borne in mind that attorney’s fees in any action
It cannot be said that one who is “permitted” to appear is “duly admitted,” as the term is used in section 8958, supra. Further than this, the requirement of section 8958 is that, one
The language of section 8958, supra, is prohibitive, and no court has the power to allow an attorney’s fee unless the litigant is represented by one who is both duly admitted to practice law, as distinguished from being permitted to appear, and who is licensed to practice as provided by the laws of this state. In the instant case neither of these conditions was present and the allowance of an attorney’s fee, either as a portion of the verdict or as costs, was prohibited.
The second question is whether or not it was error for the
This conclusion would be reached regardless of the condition of the record relative to the nonresident attorney, for it must be borne in mind that in such an action as the present one the attorney’s fee, if allowed at all, is allowed only as costs, and it is therefore improper to submit the case to the jury in such a condition that they may under the instructions take into con
This is particularly true, since by section 6544, supra, it is provided: “That no such fee shall be allowed by the court or collected from the, defendant when it shall appear from the pleadings or proof, in any such action, that the defendant prior to the institution of such action, offered or agreed to pay to the plaintiff therein * * * a sum equal to or in excess of the amount recovered as damages in said action.” There being evidence of an offer having been made prior to the institution of the action, a ease prosecuted under the statutes governing this one should be tried and submitted to the jury so that it can be clearly ascertained whether the verdict was for an amount in excess of or less than the amount offered in settlement of the claim, in order to give the defendant the benefit of the quoted provisions of section 6544. That this may be done, since the jury is not concerned with the amount of the attorney’s fees, the testimony as to such fees should be excluded from their consideration.
By the terms of section 9745, Revised Codes of 1921, an appeal from an order overruling a motion for a new trial is abolished.
We recommend, therefore, that the attempted appeal from the order overruling the motion for a new trial be dismissed, that the judgment be reversed, and the cause remanded to the district court of Mineral county, with directions to grant a new trial.
For the reasons given in the foregoing opinion, the attempted appeal from the order overruling the motion for a new trial is dismissed, the judgment is reversed, and the cause is remanded to the district court of Mineral county, with directions to grant a new trial.
Reversed and remanded.