Kneedy v. Keiser ( 1918 )

BOLDEY, J.

In this action plaintiffs are seeking' to- recover attorneys’ fees for certain -lega-l services- alleged to have -been performed by them: for the -defendant. Suit -had -been started against defendant for the -recovery of $25,000 for an alleged libel, and lie employed the .plaintiff Kneedy to act as hi-s -counsel in that case. Kneedy called the plaintiff Lasell into- the cas-e to assist him, and together they proceeded in the-matter and. secured a dismissal -of the said -action -at the -co-st of- the -plaintiff -therein. Defendant' then refused to pay the plaintiffs anything for their services, and this action- res-uted'. Plaintiffs 'recovered judgment for $106.79, an'd, from such p-uidgment and an order -overruling h-i-s motion for a new trial, defendant appeals.

[1] Appellant-contends that he-never employed the plaintiff Lasell -nor consented to his employment; that therefore he is not liable -to'him for any services lie -may'liávé rendered; .that, if Lasell performed any -services in the matter, it was at the reqjuest -of Kneedy;. and. that he should look .to Kneedy rather than, to appellant for -his ,p-ay . He further contends- that the plaintiffs -could not, in any event,'s-ue jointly or maintain a joint 'action for the services, if any, that may have been performed in the ca'se. The evidence shows that appellant employed Kneedy, and that Kneedy called Lasell into the case with him, and that Kneedy and Lasell worked together on the defense of the case. The evidence also 'show's that npr pellant knew while 'the work was being done, that Lasell had been called into the case and that he was working on the -case with Kneedy; and it further shows that appellant accepted the services of Lasell without objection or ¡protest. Under circumstances very' similar to 'these, tibia court, in Davis et al. v. Matthews, 8 S. D. 300, 66 N. W. 456, held that an attorney could' recover for his services.

Upon the question off defendant’s liability, the trial court instructed the jury as follows:

“You are instructed' as a matter of law that, if Keiser employed Kneed'y to defend' an action brought by 'Elliott, ■ then Keiser would be liable for the reasonable value of the services rendered by Kneedy in the case. If Keiser employed Kneedy as •attorney and Kneedy employed Lasell to 'assist, and if Lasell rendered services for Keiser, and if Keiser ratified the employment of Lasell, he would ibe liable for the reasonable value of Lasell’s services; or, iif Keiser voluntarily accepted, the benefits off the services, then this wauld be equivalent to a consent to an obligation to pay for the reasonable value of such services', so- far as the facts of such services were known or ought'to have ¡been known to Mr. Keiser.”

This instruction is responsive to the 'evidence and correctly states the law. Appellant does not dispute .the performance of the services set up in the complaint, nor does he claim, that the judgment 'is greater ini amount than the value of the services performed.

[2] Neither is .there any merit in 'appellant’s contention that respondents are not entitled to join in the same action and to recover jointly. This issue was not raised by the pleadings nor by any requested instruction to the jury. The evidence .shows that the services were performed jointly, and no reason .is suggested ■by appellant why respondents should not recover in one action rather than 'to have brought separate actions.

The judgment and order appealed from are affirmed.