Caldwell v. Brown

44 P. 10, 56 Kan. 566, 1896 Kan. LEXIS 62

Opinion

The opinion of the court was delivered by

Martin, C. J.

: I. The plaintiff in error contends that the court below erred in refusing to render judgment in his favor on the findings of the jury at the first trial, and in granting to the defendants in error a new trial notwithstanding said findings. It was the province of the court, however, upon the motion for a new trial, to consider whether the findings were supported by the evidence or not; and, if this question was determined in the negative, then it was its duty to set aside the findings and to award a new trial. This is so in every case tried before the court and a jury. (K. C. W. & N. W. Rld. Co. v. Ryan, 49 Kan. 1, 3, 4, 12, 13, and cases cited ; Richolson v. Freeman, ante, p. 463 ; 43 Pac. Rep. 772.) And, when issues submitted to a jury are not such as to entitle the parties to a jury trial as a matter of right, the court may consider the answers as merely advisory, and may disregard any finding not supported by the evidence. (Franks v. Jones, 39 Kan. 236, 241; Moors v. Sanford, 2 Kan. App.

* — ; 41 Pac. Rep. 1064.) No doubt, the court considered that the findings were not supported by the evidence.

II. Another assignment of error is in the refusal of the court to admit in evidence the certified transcript of the case of Whiteside & Hutchinson v. Caldwell, commenced in the district court of Reno county, and removed to the circuit court of the United States for this district. Perhaps no error would have been committed by the admission of this transcript, although there was very little in it that could have had any bearing upon the issues in this case, and that which was relevant was sufficiently brought out in the oral examination of the witnesses. We have examined all the evidence introduced, and do not think that by its preponderance any fraud is proved against Brown & Kline. The most blameworthy circumstance on their part was the failure promptly to notify Caldwell of the bringing of suit against him. It is always the du*fcy of an attorney seasonably to advise Ms client of all steps taken wliich may affect Ms interests ; but it is to be considered that the suit in which Brown & Kline were first employed was ended, and before they took their judgment the Whiteside & Hutchinson litigation had been closed. From that time, at least, the relation of attorney and client had ceased, and Brown & Kline saw that no course was left to them to recover their fees but to levy on this land, or follow Caldwell to Michigan, and sue him there. A fee even of $5,000 for a suit respecting a quarter-section of land seems large; but, from the evidence, a great amount of labor ivas bestowed and considerable expense incurred in this litigation, for the land is worth a large sum; and when Brown & Kline were employed, it was considered immensely valuable.

Finding no material error in the record, the judgment will be affirmed.

All the Justices concurring.

Not yet reported.