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STANTON ET AL. v. EMBREY

October 1, 1876

STANTON ET AL.
v.
EMBREY, ADMINISTRATOR.



ERROR to the Supreme Court of the District of Columbia. On the 13th of January, 1872, the plaintiff below, administrator of Robert J. Atkinson, filed his declaration, claiming from the defendants $10,000 with interest, from May 1, 1871, for services alleged to have been performed by the deceased in prosecuting a claim in their behalf against the United States, before the third auditor of the treasury, from 1865 to Feb. 3, 1870, and subsequently by himself, as administrator, before the secretary and other officials of the Treasury Department. The defendants pleaded in abatement the pendency of a suit against them, by the same plaintiff and for the same cause of action, in the Superior Court of the county of New London, in the State of Connecticut; to which plea the plaintiff demurred. The court sustained the demurrer, and granted the defendants leave to plead over; whereupon they pleaded the general issue. The defendants were the owners of certain steamers, which were used by the United States during the war of the rebellion at New Orleans, La., and for which use they had a claim for compensation to the amount of $45,925.07. Atkinson prosecuted it until it was allowed by the accounting officers, and a settlement made. He died before the warrant for the money was issued to the defendants. His services were rendered upon a contract for a contingent remuneration, the amount of which was not fixed. Attorneys prosecuting such claims before the departments usually harged contingent fees of from twenty to twenty-five per cent, which the plaintiff's witnesses regarded as a reasonable charge. Atkinson, who was at one time third auditor of the treasury, was conversant with the rules of the Treasury Department, and, as sole attorney, rendered services in this case, by preparing and filing printed briefs. Several prayers for instructions to the jury were presented by the defendants; but the court refused them all, and charged substantially as follows:–– Where an attorney in the exercise of his ordinary labor and calling, and with the instrumentalities of his professional learning and industry, undertakes to work out a desired result for his client, not through personal influence, but through the instrumentalities of the law,–by persuasion, as distinguished from influence,–such an undertaking is not an unlawful one, or contrary to public policy. That, in dealing with the government and its departments, there is frequently and necessarily required a degree of knowledge and skill, and an acquaintance with forms and principles, not possessed by the unlettered citizen, before a person can obtain that which is justly his due. When, therefore, the class of persons possessing such knowledge perform that labor as attorneys, no reason exists for defeating them of their compensation. If, therefore, Atkinson's employment was that of a professional man in the line of his profession, and not for the purpose of exercising and wielding an undue influence over the administrative officers of the government, and was so engaged by the defendants, the plaintiff is entitled to recover. That, in the absence of any special agreement between the parties as to the amount of his compensation, the law presumes that his reward shall be commensurate with his labor; and, although the percentage or amount which other attorneys have received in similar cases cannot alone govern in this, it is proper to be considered in determining what the intestate's reasonable compensation should be; and that, if they found that the claim was satisfied through the efforts of the deceased, and not those of others, the fact that his death occurred a day or two before the claim was paid does not deprive him of the fruit of his labor. On the 13th of March, 1873, the jury rendered a verdict for the plaintiff for $9,185.18. Thereupon the defendants moved for a new trial; which motion was overruled on the nineteenth of that month. May 3, 1873, the bill of exceptions was signed by the presiding justice, and filed nunc pro tunc Aug. 13, 1874. Sept. 29, 1873, the motion for new trial was heard at the general term of the court on appeal. The decision of the special term was affirmed, and judgment rendered on the verdict of the jury. The defendants thereupon sued out this writ of error.

The opinion of the court was delivered by: The record shows that the exceptions were duly taken at the trial. They were subsequently reduced to writing, signed by the justice who presided thereat, and filed nunc pro tunc. The case is clearly within the settled practice of courts of error. Dredge v. Forsyth, 2 Black, 568.

Mr. Thomas J. Durant for the plaintiffs in error.

The plea of lis pendens filed by defendants below was good in law, and should have been sustained. The court below possesses the same powers and exercises the same jurisdiction as the circuit courts of the United States. Rev. Stat. relating to the District of Columbia, sect. 760. The court of New London County, Conn., was not a foreign court to that of the Supreme Court of the District of Columbia. The courts of the United States are not foreign to the States. U. S. Const., art. 4, sect. 1; Rev. Stat., sect. 905. The judgment of a State court conclusive in that State is conclusive everywhere. It is put upon the same footing as a domestic judgment. 3 Story on the Const., p. 183, sect. 1307. Hence the pendency of a suit in a State court may be pleaded in an action for the same cause in the courts of the United States. To tolerate the pendency of several suits at the same time for the same cause would be a reproach to the administration of justice. Earl v. Raymond, 4 McLean, 234, 235.

A contract to prosecute and collect a claim from one of the departments of the government, in consideration of a percentage on or portion of the amount to be collected, is against public policy and the laws, since it virtually assigns a part of the claim, and an interest therein, to him who undertakes the service.

The statute in force at the time this contract is alleged to have been made, and the services were rendered, was sect. 1, act of Feb. 26, 1853 (10 Stat. 170), and is now Rev. Stat. sect. 3477, p. 693.

On the question of public policy the following cases are relied on: Marshall v. B. & O. R. R. Co., 16 How. 374. Tool Co. v. Norris, 2 Wall. 56; Trist v. Child, 21 id. 541.

The act of 1853 is designed to prevent maintenance and champerty in claims before the departments. Such a contract as the one here in question would be held tainted with both. Earle v. Hopwood, 99 Eng. Com. Law Rep. (Phila. ed.) 546; In re Attorneys' and Solicitors' Act, 1870; Law Reports, division 1, Chancery, 1876, part 4, April 1; vol. i. p. 573.

The objection of the defendant in error that the bill of exceptions in this case is not properly a part of the record cannot be sustained. The eleventh section of the act of March 3, 1863 (12 Stat. 762), reorganizing the courts of this District, provides that any final judgment, order, or decree of said court that is, the court created by that act–may be re-examined and reversed or affirmed in this court upon writ of error or appeal in the same cases and in like manner as was then provided by law, in reference to the final judgments, orders, and decrees of the Circuit Court of the United States for the District of Columbia. Therefore a writ of error to the Supreme Court of the District of Columbia is governed by the same regulations as is a writ to the circuit courts of the United States. Thompson v. Riggs, 5 Wall. 663; Pomeroy's Lessee v. Bank of Indiana, 1 id. 602.

Mr. Edward Lander, contra.

The filing of pleas in bar, after judgment sustaining the demurrer to a plea in abatement, is an acquiescence in such judgment. Bell v. Railroad Company, 4 Wall. 598; United States v. Boyd, 5 How. 29; Townsend v. Jennison, 7 id. 706; Morsell v. Hall, 13 id. 212; Shepherd v. Graves, 14 id. 505; Spencer v. Lapsley, 20 id. 264.

There was no error in the judgment of the court below sustaining the demurrer. Bowen et al. v. Joy, 9 Johns. 219; West v. McConnell, 5 La. 424; 7 Am. Com. Law, 357; Lowry v. Hall, 2 Watts & S. (Pa.) 133; McJilton v. Dove, 13 Ill. 494; Walsh v. Durkin, 11 Johns. 99; Salmon v. Wootten, 9 Dana, 422.

The courts of the District of Columbia are not, in the constitutional sense, courts of the United States. They are in the nature of territorial courts, and were established in the exercise of the power of exclusive legislation over the territory selected as the seat of government.

The bill of exceptions filed in this case, Aug. 13, 1874, nunc pro tunc, is not legitimately a part of the record. It was not settled and signed within the time required by the sixty-fourth rule of the Supreme Court of the District of Columbia. Being defective, it will not be considered by this court. Miller et al. v. Ehler, 91 U. S. 249.

The services rendered for which this suit was brought were strictly professional, and clearly within the rule announced in Wright v. Tebbitts, 91 U. S. 252; Wylie v. ...


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