Keown v. Bunton , 1915 Pa. Super. LEXIS 302 ( 1915 )

Opinion by

Trexler, J.,

The plaintiff claimed of the defendant a sum of money which the latter as attorney had collected for him. The defendant had a set-off or counter claim for services rendered for the plaintiff in several suits growing out of the same transactions. The matter was tried before a judge and a jury in the county court of Allegheny County, and the jury allowed the defendant the sum of $330.84 for services performed. The defendant moved for a new trial before the county court, alleging that the verdict was against the weight of the evidence and that the verdict as to the credit allowed him for services rendered was inadequate. A new trial being denied, he presented a petition to the Common Pleas of Allegheny County for leave to appeal stating at some length in his petition the various services performed by him as attorney for the plaintiff alleging that tlie testimony in the case showed that he was entitled to much more than the verdict of the jury allowed him, as bnt one witness testified to an amount approximating said sum and the testimony of said witness was not based upon the correct theory, and further in addition to the reasons contained in his motion for a new trial that counsel for plaintiff had made improper remarks to the jury.

First, as was stated by President Judge Rice in Robertson v. Kraus, 58 Pa. Superior Ct. 331 (333), a party who has had a jury trial under the Act of May 5, 1911, P. L. 198, as amended by the Act of May 23, 1913, P. L. 310, is not entitled to appeal from the county court unless a retrial of the issues of fact is necessary to prevent injustice; that the application for appeal is not an ex parte proceeding in which the allegations of the petition must be taken as verity; that the adverse party has a right, not only to be heard upon the question of their sufficiency, but to controvert them by answer; and that the court is to exercise a sound judicial discretion, on due consideration of the relevant matters properly brought before it, and may refuse the appeal if, upon such consideration, it is not satisfied that a retrial is necessary to prevent injustice. As there was evidence which, if believed by the jury, was sufficient to sustain the verdict, we feel that we should not disturb the conclusion reached by the jury. The power of the appellate court to grant a new trial for inadequacy of the verdict is exceptional : Chestnut v. Auto Car Co., 53 Pa. Superior Ct. 1.

Second, as to the improper remarks of counsel, they appear nowhere in the record of the case, except in the petition for the allowance of the appeal. They were not brought upon the record in the way that has been pointed out in numerous cases. They are not the subject of exception unless put upon the record at the time they are made and a motion to withdraw a juror is made and a continuance asked for: Brown v. Central Penna. Traction Co., 237 Pa. 324; Ickes v. Ickes, 237 Pa. 582; Ferguson v. Barber Asphalt Paving Co., 59 Pa. Superior Ct. 386. As there is nothing properly before us we cannot consider the matter.

Third, the plaintiff in a suit of equity in which the defendant was his attorney, which suit forming part of the transaction involved in this case, filed a bill in which he claimed “compensation for the amount of counsel fees spent by the plaintiff in dissolving the injunction as aforesaid and in sustaining the decree of the lower court on appeal to the Supreme Court, viz, $500.” It is claimed that this statement made by the plaintiff is an absolute estoppel; that he, having sworn to it, cannot now controvert the fact that defendant’s fees were to be $500. Plaintiff testified upon the trial that the statement was prepared by the defendant as his counsel, that he signed it without his attention being called to this item and that he knew nothing of it. The question of estoppel is not raised in the application for a new trial nor in the petition for leave to appeal, but without considering this irregularity in bringing the matter before the court we cannot, in any view of the case, see how the item would estop plaintiff from defending against the claim of his counsel. The attempt of both attorney and client, evidently, was to fix the attorney fees if obtained from the opposite party. If the statement is to be taken as verity, it would equally be proof of payment of the counsel fees as of their amount, for there is a positive assertion that the amount was spent and if this means anything it means that the amount has been paid. The statement was properly in evidence, and its effect was for the jury to be considered in connection with the other testimony. The court could not, as a matter of law, decide that it definitely settled the matter of defendant’s fees in said case. We think there is no merit in this assignment.

When the petition to appeal was presented to the lower court it was only accompanied by a certain portion of the testimony. This portion is now printed in the appendix together with the remainder of the testimony, bnt how much of the record was before the Common Pleas Court when the petition was presented we are unable to ascertain. As was stated in Robertson v. Kraus, 58 Pa. Superior Ct. 331 (334), all that is before the Common Pleas Court is what is contained in the petition and whatever might be attached thereto or made a part thereof. The proper practice indicated in said case is that the evidence given in the triál should be brought upon the record in the Common Pleas by incorporating it in or attaching it to the petition, a transcript of it, or in any other manner. However, as we think upon the merits no injustice was done to the defendant and that the verdict should stand, we need not further discuss this phase of appellant’s case.

All the assignments of error are overruled and the order of the court is affirmed.