DeGarmo v. Luther T. Mayo, Inc.

SCOTT, J.,

pro tem.

Plaintiff recovered judgment for attorney’s fees for services to defendants, from which the latter appeal.

A counterclaim was interposed by defendants setting out that through negligence of plaintiff they had been damaged in the sum of $5,000. Defendants had sued an investment corporation, and assert that the judgment recovered by

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them was less by that amount than the sum to which they were entitled. The trial court held that the cause of action on the counterclaim was barred by the limitation imposed by section 339 of the Code of Civil Procedure, and excluded it from consideration by the jury. Judgment in said suit by defendants against the investment corporation was entered March 7, 1930. Suit in the instant case was filed March 21, 1932. Contrary to the suggestion of appellants that this was error, it appears that the ruling of the trial court was correct. The negligence if any occurred prior to entry of the judgment; the acts subsequent theerto relate to damages rather than liability.

The Supreme Court of the United States considered this question over a century ago in

Wilcox

v.

Executors of Plummer,

4 Pet. 172 [7 L. Ed. 821], and said: “The ground of action here is a contract to act diligently and skillfully and both the contract and the breach of it admit of a definite assignment of date. When might this action have been instituted? is the question, for from that time the statute (of limitations) must run. When the attorney was chargeable with negligence or unskillfulness his contract was violated, and the action might have been sustained immediately. Perhaps, in that event, no more than nominal damages may be proved and no more recovered; but on the other hand it is perfectly clear that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the date of the verdict. If so, it is clear that the damage is not the cause of action.’’

“Under section 339 of the Code of Civil Procedure a cause of action against an attorney for neglect of duty in the management of an action is barred at the expiration of two years after the neglect occurred.