Stubbs v. Gordon , 1 Gunby 20 ( 1885 )

Gunby, J.

It is well settled that evidence admitted without objection will be considered and given effect to, notwithstanding its inadmissibility under the pleadings.

2. The surviving wife and partner in community is not required to give bond as usufructuary before entering into the enjoyment of the usufruct of her minor children’s property, to which she is entitled during widowhood by law without bond. C. C. 560: 11 An. 297.

3. The notary is required by law, in making an inventory, to make a distinction between the community and the separate property of deceased; C. C. 1106, 1107; he can only derive the knowledge necessary to do this by an examination of records and titles, and if he fails to do his duty in this respect, the fault cannot be attributed to the attorneys of the succession, unless the failure is shown to have been due to their instructions.

4. C. C. 3353 requires a certificate of the amount of the succession to be recorded, and makes it the duty of the clerk to have such certificate recorded ; the recordation of the clerk’s certificate of the aggregate amount of the inventory of the succession is sufficient and adequate to preserve the minor’s mortgage for the full amount of the inventory, even where all the minor’s property is not embraced in the inventory. 34 An 33; 24 An. 189,

5. There are three factors to be considered in fixing the amount of attorney's’ fees in a suit on a quantum meruit, viz: 1st, The customary charges made by attorneys in the place where the services were rendered. 2d, The amount involved and the ability of the party to pay. 3d, The extent and nature of the labor, care and skill incident to the services.

6. The rules for fixing the compensation for skilled labor are always more or less arbitrary; but, in the profession of the law, that compensation, in all countries and under all systems, is determined, in a large degree, by the amount of the interests involved and the benefit resulting to the client. 30 An. 337, 463; 31 An. 414; 12 R. 414.

7. The amount of responsibility and skill employed by a lawyer cannot be guaged by the amount of manual labor performed; every hour a lawjmr has studied his profession forms a part of his services in every case attended to by him, and legal proceedings, in which but few papers are filed, often are preceded, accompanied and followed by advice and counsel requiring great experience, judgment and skill.

8. It is well settled that either party to a case tried by a jury, if dissatisfied with the verdict, should ask for a new trial before appealing or asking to amend the judgment on appeal. 17 An. 78; 15 L. 466; 17 L. 336; 25 An. 114.