Hille v. Johnston

The plaintiff was awarded judgment for the sum of $2,391.41, with interest thereon at the rate of seven per cent per annum from the date of said judgment, on account of and for professional services alleged to have been performed by plaintiff’s assignor as attorney for defendant in a certain action tried and prosecuted to judgment in the superior court of Sacramento County, wherein the defendant herein was plaintiff and August DeBock, his wife Clara E. DeBock and Millie Fisher were defendants.

The defendant appeals from the judgment upon a record prepared in pursuance of section 953a of the Code of Civil Procedure.

On the fourteenth day of July, 1915, the defendant and appellant (then known as and called Catherine M. DeBock) and P. H. Johnson, an attorney and counselor- at law,, entered into a written contract, by the terms of which said Johnson, for a certain contingent consideration, agreed to perform for defendant certain professional services in the action, above named, in which the defendant as plaintiff sued the DeBocks and said Fisher for damages “for alienating the affections of the husband of defendant.’’ Omitting the preamble or the explanatory language therefrom, the contract, which is made a part of the complaint, is as follows:

“Now therefore, it is agreed on the part of said Catherine M. DeBoek that in consideration of the legal services of said P. H. Johnson so rendered, in prosecuting said claim for damages against said parties hereinabove named, that the said Catherine M. DeBoek will defray the necessary Court Costs, Jury Fees, Witness fees and all other expenses of trial in said action, and pay to the said P. H. Johnson one-half (%) of all money or moneys recovered or paid on account of said claim for damages, either by settlement, compromise or pursuant to a judgment of court, or otherwise;

“That, in consideration of the foregoing promises on tho part of the said Catherine M. DeBoek, the said P. H. Johnson agrees to prosecute the claim of said Catherine M. DeBoek for such damages against the said parties herein-above named, through all the courts of this State, provided, however, that the said Catherine M. DeBoek, in case of Appeal from any Court of the above mentioned action, the said Catherine M. DeBoek will pay and defray all costs and expenses of appeal of whatever nature or kind necessarily incurred;

“That it is mutually agreed, that neither party to this agreement shall settle or compromise the said claim without the consent of the other party thereto.”

The complaint is in two counts, but the two contain substantially the same allegations. It is alleged therein that, after the making of said agreement, said Johnson commenced said action for damages in behalf of defendant and “thereafter duly and regularly prosecuted said action and said claim of defendant for damages against said defendants in said action named through all the courts of said State of California and to a ihial judgment in said action in favor of defendant herein.” It is further alleged that, on the fifteenth day of August, 1924, the sum of $4,528.50 was paid to defendant on said judgment, and that, under and by virtue of the terms of the said (above) agreement between said Johnson and said defendant, one-half the moneys so collected upon said judgment “remains due, owing and unpaid from defendant; that, prior to the commencement of this action, said P.

The defendant, by permission of the court, filed an amendment to her answer, in which she attempted to set up, by way of estoppel against the right of the plaintiff here to maintain the present action, the judgment referred to in her answer as originally filed as having been obtained in the action instituted and prosecuted by attorney Platnauer for the purpose of setting aside the satisfaction of the original judgment in favor of the defendant here against the DeBoeks.

The defendant also filed a cross-complaint and, after by reference making those paragraphs of the answer setting forth the allegations last above referred to herein parts of said pleading, alleged therein that “by reason of the refusal of said P.

A demurrer was interposed to the cross-complaint upon general and special grounds. The special ground of the demurrer was that “there is a misjoinder of parties cross defendant in said action, in this, that said P. H. Johnson is not a proper party or cross defendant in said action.” The demurrer was sustained by the court without leave to amend.

The court found that the plaintiff’s action was not barred by the statute of limitations, as alleged in the answer, and, further, that plaintiff was not estopped from maintaining this action by reason of the judgment entered in favor of defendant, as plaintiff therein, in the action brought by defendant against P. H. Johnson to set aside the compromise agreement referred to. As to the latter proposition, the record shows that the attorney for the defendant offered the judgment-roll in evidence, but the court sustained the objection of plaintiff to the admission of it in evidence. Nor is the said judgment-roll in the transcript. As to that matter, therefore, the record is such as to preclude a review and a determination of the point that the ruling excluding the judgment-roll in said action from the record involved error. If defendant desired that that point be reviewed by this court, it was incumbent upon her to have incorporated the judgment-roll in the transcript. The defendant does not in her briefs make any point as to the finding against her plea of the statute of limitations; hence it is to be presumed that she has here abandoned that proposition.

Preliminarily to a consideration of the points mainly relied on for a reversal, it is orderly at this point to consider and dispose of the motion by respondent for an affirmance of the

In denying a petition for a hearing of the case of California Sav. etc. Bank v. Canne, 34 Cal. App. 768 , 770 [ 169 Pac. 395 ,396], the supreme court, speaking of the rule with respect to the preparation of records on appeal, as prescribed by section 953c of the Code of Civil Procedure, said that, while the law requires that “enough (of the record) must be printed (in the briefs or a supplement appended thereto) to illustrate the points made and to enable the court to determine those points,” yet “just exactly what must be printed in any particular case in order to comply with this requirement necessarily depends upon the circumstances of the case.” In San Joaquin etc. Irr. Co. v. Stevinson, 16 Cal. App. 235 , 239 [ 116 Pac. 378 , 380], it is said, referring to said section 953c, “that it would be difficult to lay down a ‘hard-and-fast’ rule as to the practice under the new sections or one that would meet the exigencies of all cases that are brought to the appellate courts by the alternative method of taking appeals.” In Jeffords v. Young, 197 Cal. 224 , 229 [ 239 Pac. 1054 ], it is said: “It has been reiterated approximately one hundred times in the decisions of this court and of the district courts of appeal that it is incumbent upon an appellant who relies upon a typewritten transcript (referring to the alternative method of taking appeals), to print

As accounting for the conclusions announced in some of the cases from which brief excerpts are above given, it should be explained that section 953c of the Code of Civil Procedure has been amended several times since its adoption into said code as a part of the procedure of our appellate practice in the year 1907 (Stats. 1907, p. 751). The legislature of 1919 (Stats. 1919, p. 261) amended the section by adding thereto the following provision: No appeal shall be dismissed nor shall any appeal be decided adversely to any party for failure to print in his brief the portion of the record or any part thereof in support of his points, but in such case the court hearing the appeal shall direct such party to print and serve on the adverse party and file with it a supplement to his brief in which shall be set forth in full that portion of the record relied on by such party and not printed in any former brief.”

But the legislature of 1923 (Stats. 1923, p. 748) again amended said section by eliminating therefrom the part just quoted herein and inserting in lieu of said provision the following: “In filing briefs in said appeal the parties must, however, print in their briefs, or in a supplement appended thereto, such portions of the record as they desire to call to the attention of the court. The court may in all cases, upon good cause shown, extend time to a party to print and file his brief, provided that the application is made before calling of the calendar for oral argument on the

The case of California Sav. etc. Bank v. Canne, first hereinabove referred to, was decided October 9, 1917, when the section read as it was originally passed by the legislature of 1907. The case of San Joaquin etc. Irr. Co. v. Stevinson, supra, was also decided prior to the amendment of the section by the legislature of 1919. The opinion in Jeffords v. Young, supra, was filed on October 1, 1925, at which time, as seen, section 953c had been amended by the legislature of 1923 restoring to said section the provision thereof now under inquiry as it read prior' to the amendment thereof by the legislature of 1919 and as it now reads.

The case of People v. Woods, supra, was decided on March 1, 1923, but before the amendment of the section by the legislature of that year went into effect, so that that case dealt with said section as it was amended in 1919. The case of Furlong v. Alexander, supra, was decided and the opinion therein filed on December 31, 1925, at which irme section 953c, in the particular in which we are now considering it, read as it was originally passed in 1907 and as it now reads, except that there was added thereto the provision (above herein quoted), authorizing the court to extend the time to a party to print and file his brief, etc. It is in that case, it will be remembered, that it is held, upon the authority of People v. Woods, supra, that the provision of section 953c presently under review is directory only.

It is to be observed from the foregoing review of some of the many cases in which the provision in question has been considered that the construction which it has been given by the courts has been from different viewpoints created by varying conditions arising and existing by reason of the several amendments to which it has been subjected. We do not think that, as it now reads, the provision can, consistently with the mandatory nature of its language, be held to be directory. This would mean that it would be entirely in the discretion of the party taking an appeal to determine whether the briefs should contain any portions of the record. We are of the opinion, however, that whether, in a given case, the briefs of the party, generally the appellant, where an attempt has therein been made to comply with the terms of the provision, sufficiently measure

So it appears that, as above stated, whether a review will be allowed where the appellant has failed, wholly or partially, to comply with the provision in question of section 953e, is to be determined by the reviewing court in the exercise of its discretion founded upon the situation of or the conditions characterizing the particular case in hand. The court’s discretion in that particular should not and, of course, would not be abused. This construction would seem to be reinforced by the consideration that, where the appeal is taken in accord with the alternative method, the requirement that certain specified portions of the record are to be printed in the briefs, etc., is, primarily, for the benefit or convenience of the court to which the appeal is taken, although, incidentally, it is also for the benefit as well of the adverse party. The construction harmonizes with the policy of reviewing courts (above adverted to) that all appeals should be determined upon the merits rather than disposed of upon some technical rule among those established for the purpose of regulating the procedure by which appeals should be presented to such courts where it can be done without too drastic a departure from the requirements of said rules. And the construction accords with what we conceive to be the view of the provision as expressed in Jeffords v. Young, supra, or as is to be implied from the language of Chief Justice Myers, author of the opinion in that case, as follows: “An appellant who fails to do this (referring to the requirement of the provision that certain indicated portions of the record be printed in the brief), incurs thereby the risk that the order or judgment appealed from may be affirmed upon motion.” The warning, however, thus given the members of the" legal profession still stands, and it may well be repeated here that, in preparing appeals according to the alternative method, the failure on the part of attorneys to follow, in a proper manner, the course prescribed by the provision in question, will always be at their own risk, for cases will certainly arise where, to excuse such failure, would involve an abuse of discretion and amount practically to a judicial nullification of the provision.

As to the order sustaining the demurrer to the defendant’s cross-complaint, it may first be observed that it is the general rule in this state that, in an action to recover on a contract, the defendant may cross-complain for damages caused by plaintiff’s breach of the same contract. (Code Civ. Proc., sec. 442; 21 Cal. Jur. 79; Mackenzie v. Hodgkin, 126 Cal. 591 [ 77 Am. St. Rep. 209 , 59 Pac. 36 ]; Campbell v. Heney, 128 Cal. 109 [ 60 Pac. 532 ] ; Imperial Water Co. No. 4 v. Meserve, 62 Cal. App. 603 [ 217 Pac. 553 ].) Of course, it will not be questioned that the subject matter of the cross-complaint is germane to the cause of action stated in plaintiff’s complaint, and “relates to or depends upon the contract or transaction upon which the action is brought,” within the meaning of section 442 of the Code of Civil Procedure. Nor will it be doubted that, notwithstanding that the said agreement and any rights accruing to said P. H. Johnson thereunder were assigned to plaintiff, the defendant is entitled to interpose as a defense against the enforcement of the agreement any set-off existing at the time of or before notice of the assignment. (Code Civ. Proc., sec. 368.) It does not appear that said P.

Referring now to the cross-complaint more specifically than the averments thereof are above referred to, it will be observed that therein it is alleged that said Johnson, after prosecuting to judgment defendant’s claim for damages in the alienation action, “abandoned said contract and refused to continue further; that, upon the abandonment of said contract and said refusal of said P. H. Johnson to further continue under said contract, this defendant hired another lawyer to prosecute said action and to collect said money; . . . that said Johnson, without the knowledge or consent of this defendant, entered into an agreement to compromise said judgment and requested this defendant to ratify this agreement and to satisfy said judgment of record; that this defendant refused to accept said compromise and refused to satisfy said judgment of record; that thereupon said P. H. Johnson, without the knowledge or consent of this defendant, and without the authority of this defendant, and contrary to this defendant’s wishes, himself satisfied said judgment of record and received from said DeBoeks the sum of $4,500.00”; that said Johnson refused to deliver said sum or any part thereof to defendant, and that the latter was compelled to and did employ another attorney to commence and prosecute an action to set aside said satisfaction of said judgment and obtained

Under our code system of practice and procedure and the authorities above named, the defendant was, notwithstanding the assignment by said Johnson, of his claim to plaintiff and that the action to recover thereon is by said assignee, entitled to set up in her answer any set-off she might have against the claim constituting the basis of plaintiff’s cause of action or cross-complaint for damages by way of recoupment for any damage she might have sustained by reason of the alleged violation by said Johnson of the terms of their agreement. (Campbell v. Heney, supra.) Of course, the plaintiff should be made a party cross-defendant with Johnson, for, while he is in no way responsible or liable for any damage defendant might have sustained by the alleged wrongful acts of said Johnson with reference to his agreement with defendant, he nevertheless is interested in the cause of action stated in the cross-complaint, since he has the right to defend against the claims of that pleading and thereby prevent, if he can, any diminution, by way of the counterclaim practically so pleaded, in the amount of any judgment to which the court

The next and last assignments to be considered pertain to rulings excluding testimony purporting to be addressed to the proof of the allegations of the answer charging Johnson with a breach of the agreement. Counsel for defendant asked the defendant, as a witness, a number of questions as to said P. H. Johnson’s conduct with regard to the alienation judgment after the same had been obtained. The court sustained objections to some of those questions on the ground that they were improperly framed, in that they called for answers which would have involved conclusions of the witness and also, in some instances, legal conclusions. Those rulings were, in the main, technically sound. But counsel for defendant, proceeding along the lines of his special or affirmative defense, asked defendant these questions: “Well, Mrs. Johnson, do you recall the time of a conversation with Mr. P.

The judgment is reversed, with directions to the trial court to overrule the demurrer to the cross-complaint and thereupon grant leave to defendant to amend said complaint by making the plaintiff a party defendant thereto with said P. H. Johnson, and in any other respect that may be deemed necessary, and to amend her answer to plaintiff’s complaint with respect to the special defense therein set up, if, in either or both instances, she be so advised.

Plummer, J., and Finch, P. J., concurred.