Gilmore v. Connellsville Water Co.

Opinion by

Orlady, J.,

(after stating the facts as above ):

By section 28 of the act of June 16, 1836, P. L. 793, it is provided, “ the several courts aforesaid shall have power, .... to make rules upon attorneys for the payment of money and the delivery of deeds, and other papers in their hands, belonging to their clients, and in every such case to enforce obedience to such rules by attachment,” ....

In Balsbaugh v. Frazer, 19 Pa. 95, the Supreme Court declare, “ It ought to be known that the following propositions are undeniably established by authority and fortified by reason.” “ 4th. If the client is dissatisfied with the sum retained he may either bring suit against the attorney or take a rule upon him. In the latter case the court will compel immediate justice, or inflict summary punishment on the attorney, if the sum retained be such as to show a fraudulent intent. But if the answer to the rule convinces the court that it was held back in good faith, and believed not to be more than an honest compensation, the rule will be dismissed, and the clients remitted to a jury trial,” which is adopted in Shoemaker v. Stiles, 102 Pa. 552, and In re Rule on Kennedy, 120 Pa. 497.

The court below evidently had this last case presented for consideration (appellant and his counsel being identified with it, as well as the one on trial, with equal concern), and from the decree made was convinced that the rule should not be discharged and this client remitted to a jury trial to determine the right to the $249.62.

This record presents the decree with like weight of a verdict, and will not be set aside unless the error clearly appears: Butterfield v. Lathrop, 71 Pa. 225; Fall Creek C. & I. Co. v. Smith, 71 Pa. 230; Thornton v. Enterprise Ins. Co., 71 Pa. 234.

An examination of the evidence does not warrant a reversal. Appellant urges in argument in this court for the first time, that “ the case was for the decision of a jury and not for the court.” The answer raised an issue of facts which was urged by depositions and on argument to have the rule discharged. No request was made for a trial by jury, but the issue was submitted to the court. The authority to enter judgment in favor of appellant was recognized and urged, with knowledge of his rights as he was attorney and counselor at law.

Trial by jury is a guaranteed right under our government, but it is a right which may under special conditions be waived: Lavery v. Commonwealth, 101 Pa. 560: Proffatt on Jury Trial sec. 111, 112.

After having submitted the determination of the facts to the court, and having taken the chances of a finding in his favor, he cannot after an adverse decision select a new tribunal: Lower’s Appeal, 1 Walker, 404; Bradford’s Appeal, 29 Pa. 513.

The assignment of error is overruled and decree affirmed.