Dobbs v. Campbell

72 P. 273, 66 Kan. 805, 1903 Kan. LEXIS 189

• Court: Supreme Court of Kansas
• Decided: April 11, 1903
• Docket: No. 13,069
• Status: Published

Opinion

Per Curiam:

Defendant in error, as plaintiff in the district court, sued for money had and received. The plaintiffs in error, as defendants below, admitted receiving the money, but claimed it for services rendered as attorneys for the plaintiff, and claimed a lien under section 395, G-eneral Statutes of 1901. The reply admitted certain allegations of the answer, specifically denied the others, and pleaded payment. On the trial the source of the fund sued for was admittedly proved, and the court held that it had been received under such circumstances that it eould’not be retained by the defendants at all. Further testimony in the case was excluded as immaterial and judgment entered for the plaintiff. In this the court erred. The plaintiff had estopped himself from making such defense by_ failure to plead the origin and character of the fund and by suing as for money had and received. He could recover only on the issues presented by his pleadings.

In the brief it is suggested that the facts proved deprived the defendant of any right to compensation at all. 'No such question affecting the conduct of attorneys at law should be decided except upon specific issues duly framed.

Plaintiffs in error further claim' that a certain written correspondence should have been submitted to the jury to determine whether or not a settlement at a certain time was disclosed. The effect of these writings and what they proved was a question for the court, and its ruling in this respect was correct.

The judgment of the district court is reversed, with direction to grant a new trial.