Neighbors v. State

Brent, J., delivered the opinion of the Court. This is an action upon a sheriff’s bond to recover an attorney’s fees, placed in his hands for collection. No question arises upon the pleading, and we shall refer to it only in connection with the testimony offered and rejected by the Court below. The first exception is taken to the refusal of the Court to permit the appellants to prove by a deputy of the sheriff that he had called, with all the necessary papers, at the law office of the appellee before the 1st day of November, 1869, and said to him, “ Colonel, we are now ready to make a settlement of your apjiearance fees:” that the appellee replied, “it is impossible to attend to it to-day, my business.prevents me from so doing,” and further said that the witness should call at some other time, naming a day after the 1st of November, and that the witness then left.

The only plea, in which there is any allegation of an accounting between the parties before the 1st of November, is the fifth. In this plea the allegation is, that the sheriff “did account ivith and pay over to William P. Maulsby the fees due and owing him, before the first day of November, in the declaration mentioned.” The testimony rejected amounted to an offer only to account, and could not in any way have sustained the issue, presented by this plea, of an actual accounting, and payment over of the amount ascertained to be due. There is no other plea to which the testimony could possibly have been applicable, and it was therefore, under the pleadings in the case, properly rejected. ⁴⁸¹ The next exception is to the failure of the Court, they being equally divided in opinion, to admit the testimony of Thomas Gorsuch, by whom the defendants offered to prove, that he “as one of the assignees of Doub, against whom said fees were charged, had not employed either of the Messrs. Maulsby in the cases, for which appearance fees had been placed in the hands of the sheriff.” The defendants by their fourth plea allege, that the sheriff’ had accounted for, and paid over all the fees placed in his hands for collection by the plaintiff, which he received or collected, or which he ought to have collected.

Under this plea the defendants were entitled to offer sucli proof as would show to the satisfaction of the jury, that the sheriff could not collect the fees claimed, — such as the insolvency of a party, non-residence, or that the fees had been paid, or were not due. The right of an attorney to an, appearance fee must depend upon a contract, either express or implied, with the party against whom it is charged. He certainly cannot enter an appearance and claim to be entitled to the usual appearance fee, unless he has been employed, or, what amounts to the same thing, his services have been accepted. The receipt of the sheriff given for the collection of such fees, in a suit upon his bond, raises only a presumption against him that they are duo and could be collected, and like any other presumption it may be rebutted.

If he can establish successfully the fact, that the attorney had not been employed, the very foundation of the claim is taken away, and the fee could not have been collected by process of law. And it is competent for the sheriff, in an action like the present one, to offer such proof in the same manner, as it is competent to offer proof of insolvency, non-residence, or payment by the client to the attorney. The admissibility of all such evidence rests upon the same principle. It is difficult to understand the meaning of this exception, unexplained as it is by any other part of the record. ⁴⁸² We are not furnished with the list of fees placed in the sheriff’s hands, and cannot tell the precise manner in which those in question were charged.

We have construed the exception to mean, either that the fees were charged against the witness alone, or against him and another person as joint assignees of a certain Doub, in cases where they were actual parties. If the fees were charged against Gl-orsuch alone, the testimony of course was admissible. If against him and a co-assignee it was equally so. His testimony tended directly to prove the issue presented, and 'was per se competent for that purpose.

It cannot matter that it did not prove the whole issue. It is sufficient that it formed a link in the evidence necessary to establish the claim to a