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Lacific Coast Law Journal.
May 11, 1878.
An example, which ought not to be followed in California, occurs in the near approaching election of Supreme Court: Judges in Tennessee. A Democratic Convention will assemble at Nashville on the 29th instant, whose nominations, as it has been decided by the party leaders, will include candidates for the Supreme Bench, the highest and most sacred office in the catalogue. This course indicates that the ultimate court is to bear the taint of political bias. A political judiciary is one of the grandest curses that can afflict the body politic. It is a towering evil, alike opposed to the sober judgment of all fair minded citizens; to the spirit of the Constitution, which prescribes a total separation of the judicial from every other department of government; to the supposed progress of the times in wisdom and conservatism; to the very life of the inestimable doctrine of Stare Decisis; to the maintenance of a high standard of learning and efficiency at the bar; to public confidence in the established civil and political relations of the community; and finally, to the peace and perpetuity of the republic itself. When political conventions fill judicial offices, it means that the last resort of the injured citizen shall be naught but the abode of a dominant political bias; of unenlightened judgment adhering by force of habit, if not by influence of corruption, to partisan maxims, which, by necessity, must tend to ostracize advocate and client of unwelcome political tenets, and promote the side that sustains the recognized party affiliations.
The repeal of the Bankrupt Law has become a question concerning the best time to put the repeal into effect. The Judiciary Committee reported in favor of the 1st of January next; the argument used being that the next Congress will then have been in session a sufficient time to mature a new bankruptcy system. A compromise was made by the adoption of September 1st as the time when the repeal shall take effect (and the bill so amended now goes back to the House).
Supreme Court of California.
APRIL TERM, 1878.
[Filed April 22, 1878.]
KELLEY, RESPONDENT, vs. MCKIBBEN, APPELLANT.*
FINDINGS.—The findings, in an action for the recovery of personal property, should
contain a description thereof. A finding referring to the complaint for descrip
tion, when it appears that the amended complaint was intended, is irregular. JUDGMENT. A judgment is invalid for uncertainty where it refers to the findings for
certain data, and the findings in turn refer to the pleadings, from which it can not be intelligibly ascertained what is meant.
Appeal from the Fourth Judicial District, San Francisco.
Action in claim and delivery for household furniture, consisting of bed-room sets, chairs, carpets, etc., specifically described in the complaint, alleged to be worth $1,000, seized by McKibben on the 22d of November, 1875. McKibben justified under an execution from the Justices' Court against one Morgan, placed in his hands as sheriff, and denied ownership of Kelley.
The findings recite that Kelley on the 22d of November was the owner, etc., of all the goods mentioned in the complaint,
A petition for rehearing in this case was filed by respondent, May 6th, 1878.
except the following articles therein enumerated to-wit: [Describing a portion.]
Defendant appealed on the judgment roll and the order denying defendant's motion to retax the costs.
Mogan & Sullivan, for appellant.
The judgment recites that the case having been submitted for decision, the court delivers its findings and decision in writing, which is filed, and orders that judgment be entered in accordance therewith. It then proceeds as follows: “Wherefore, by reason of the law and the findings aforesaid, it is ordered, adjudged, and decreed that Luke C. Kelley, plaintiff, do have and recover from William McKibben, defendant, judgment for the return of said property mentioned therein, or if such return can not be had, then for damages, etc."
The most favorable view for the plaintiff is that the property "mentioned therein " is the property mentioned in the findings, mentioned in the recitals by which the judgment is preceded. Upon reference to the findings, however, it appears that no property is actually mentioned there except certain property of which the plaintiff is found not to be the owner. The property which is found to belong to plaintiff is not mentioned at all in the finding, but is stated therein to be the property " mentioned in the complaint.” Upon looking into the complaint, no intelligible description of the property is found there.
It may be proven that the reference to the complaint is mistaken, and that the amended complaint is really intended. But this will be found not to relieve the difficulty, for though the amended complaint contains an enumeration of the articles of personal property sued for, it is manifest from the findings, already referred to, that several of them are found not to be the property of the plaintiff, and yet the excepted articles can not be selected with any degree of certainty from the list enumerated in the amended complaint.
In short, the judgment is uncertain in itself, and the reference by which it is attempted to be supported does not make it certain.
The conclusion to which we have arrived upon this point, renders the decision of the question upon the taxation of costs below unnecessary.
Judgment reversed and cause remanded.
Neither Mr. Justice MCKINSTRY nor Mr. Justice RHODES expressed an opinion.
AMBROSE, APPELLANT, vs. McDONALD, RESPONDENT.
ATTORNEYS AND COUNSELORS. COMPROMISING CLAIM.-A client employed an at
torney to bring suit. The attorney compromised the debt before suit at fifty cents on the dollar, and failed to account to his client - Held, the settlement was no defense to an action for the full amount claimed.*
Appeal from the Twelfth Judicial District, San Francisco.
This was an action to recover $613 claimed from McDonald on the purchase and sale of 20 shares of Overman stock and 20 shares of Chollar-Potosi, during September, 1874. The answer admitted the transaction, mentioned the complaint, but set up a counter claim for a subsequent operation in Silver Hill stock, and for further affirmative defense relied upon a full accounting and settlement, and payment of all sums found due thereon.
The court below found that on the 1st of December, 1874, McDonald had an accounting of the matter in controversy with one Morgan, at that time attorney of Ambrose, and paid to Morgan $311 in full of all demands; that the plaintiff, Ambrose, had engaged the services of Morgan as an attorney to collect the money, restricting his employment to the bringing of suit by writing to that effect; that about the
* As to compromises after suit commenced, vide Preston vs. IKII, 50 Cal. 43; Ilolmes vs. Rogers, 13 Cal. 191; and Sampson vs. Ohleyer, 22 Cal. 210.
time of employing him, plaintiff introduced Morgan to defendant as his lawyer, but said nothing about the extent of his authority. Thereafter Morgan wrote a letter to defendant demanding a settlement, which resulted in the payment above mentioned of $311, being about half the amount claimed. The court further found, that Morgan retained the money and left the country. As conclusion of law the court was of the opinion that plaintiff, having placed Morgan in a position of trust and confidence towards McDonald by introducing him as his attorney, was bound by the settlement, and rendered judgment accordingly. From an order denying a new trial the plaintiff appealed.
Daniel Titus, for appellant.
The court finds that Morgan was employed by plaintiff as an atlorney to collect the money due from defendant to him, and that plaintiff restricted his employment to the bringing of a suit against defendant to recover such money.
There is no evidence nor finding of fact that Morgan was represented by the plaintiff as having any relation to him except as his "lawyer.” As attorney-at-law he had no authority, actual or ostensible, to compromise the claim or receive any money thereon until after suit brought. (C. C. P. 283.)
Judgment and order reversed and cause remanded for a new trial.
[Filed April 20, 1878.]
EVIDENCE – EXPERTS:- When the facts from which negligence is sought to be infer.
red are within the experience of all men of common education, the opinions of experts are inadmissible. It is for the jury to draw the inference of negligence.
Appeal from the Seventh Judicial District, Marin County.