Walker v. Goodman , 21 Ala. 647 ( 1852 )

PHELAN, J.-

— -This was an action on the case brought by plaintiff in error against the defendants, as attorneys at law, to recover damages occasioned, as it is alleged, by their want of care and skill in the management of a certain suit instituted by her against certain persons in the Circuit Court of Chambers.

The declaration contains two counts. In the first, after stating the professional character of the defendants, and their retainer by plaintiff to conduct the suit, it is alleged, that defendants conducted the suit so negligently and unskilfully, “ in not having a certain writ of attachment, affidavit and declaration before then prepared by the said defendants in the said action, prepared and drawn up and filed, and made out according to the laws of said State and rules of said court, that the said plaintiff, by the said neglect, unsldllfulness and default of the said defendants, &c., was hindered and prevented from recovering judgment, &c., and was forced and compelled to release and dismiss the levy of said writ of attachment, &c. By reason whereof, the said plaintiff has been prevented from recovering her demand,” &c.

The second count alleges, that the defendants, through want of care and skill, “did dismiss the levy of a certain writ of attachment” before that time levied on the property of the defendants in the attachment suit; “and did dismiss, relinquish and release all liens which had attached or accrued by virtue of said levy,” &c., “ and that the said action afterwards became and was rendered wholly abortive, and of no avail and that, by means of the unskillful and negligent management of the defendants, the plaintiff “ lost her said demand and the means of recovering and collecting the same.”

There was a demurrer to each countin the declaration, and also to the whole declaration, which demurrers the court below sustained, and gave judgment for the defendants. This decision of the court is assigned for error.

Both counts of the declaration present a good cause of action. It may not be the strict professional duty of an attorney, to prepare or supervise the preparation of an affidavit for an attachment, or a writ of attachment; but if he does undertake to do so, and does it so negligently or unskillfully that his client in the progress of the cause suffers an injury, by reason of such want of care and skill, the attorney is liable to an action. That it is the attorney’s duty to prepare a declaration admits of no question; and here the allegation of neglect and want of skill embraces as well the declaration as the affidavit and writ. This made it sufficient, if the other words did not.

Whatever may be said of the first count, I can see no sort of objection to the legal sufficiency of the second. The allegation is, that defendants having been retained as attorneys to prosecute an attachment suit, for want of care and skill “dismissed the levy of the attachment,” and “released and relinquished all liens which had accrued by reason of such levy,” by which plaintiff' “lost her demand and the means of recovering the same.” This count undoubtedly presents a substantial cause of action against an attorney for negligence. The degree of negligence necessary to charge him is a question of fact for the j ury. 2 Por. 205.

- The court below erred in sustaining the demurrer to the whole declaration, and to each count.

Let the judgment bo reversed, and the cause remanded.