Cunning v. Kemp

22 Wis. 509

• Court: Wisconsin Supreme Court
• Decided: February 15, 1868
• Status: Published

Opinion

Dixon, C. J.

This case comes up on exceptions to the instructions of the court to the jury, and to an order overruling a motion for a new trial. The grounds of the motion do not appear, hut they probably were that the court erred in the instructions; so that the case turns on the correctness of the instructions alone. We see no error in the instructions for which the judgment ought to be reversed. The judge was certainly right when he said to the jury that the question seemed to be, whether the plaintiff was entitled to fees for his services as attorney for defendant in the habeas corpus case. Nor was he wrong when he said that there was evidence showing that there was some, understanding that twenty-five dollars from .each of the parties interested in that case would settle the attorney’s fees. There was some evidence to that effect. The judge then proceeded, as we think, very fairly, to submit that question to' the jury. He neither assumed that there was or was not such an understanding, but left it to the jury to determine, and if the jury should find that there was, it was then for them to say whether the defendant had paid the twenty-five dollars agreeably to the understanding.

| The residue of the instructions seem equally unexceptionable. It was, as a general proposition, correct enough for the court to instruct the jury, that in estimating the value of the plaintiff’s services in the case upon indictment, they might take into consideration the amount he had settled for with other persons charged in the same indictment, and for whom the same services were rendered. If the plaintiff, in consideration of the poverty of some of the persons indicted, had settled with them for a less sum than his services were really worth, or if the services rendered for the defendant in this action were greater or more valuable than those rendered for the others, these were matters to he brought to the attention of the jury by special instructions prepared by the plaintiff and presented to the court for that purpose. They are not matters which can he reached by exception to a charge, otherwise generally correct, when it is obvious, from the nature of the exceptions, that the attention of the court was not called to the specific grounds of objection urged. They are more properly the subject of special instructions, to he asked by the party who insists upon them.

By the Court. — Judgment affirmed.