Pete v. Henderson

PETERS, P. J.

The plaintiff, Louis Pete, Jr., appearing in propria persona, is administrator of the estate of his father. The defendant is the administratrix of the estate of John Henderson, a deceased attorney. This action was brought by plaintiff, in his representative capacity, against Henderson, prior to his death, for damages alleged to have been caused by the negligence of the attorney in failing to file a notice of appeal in an action in which a judgment for $1,660 had been rendered against plaintiff, and which judgment plaintiff was forced to pay without having it reviewed on appeal. The prayer requests as damages the $1,660 so paid, and $150 paid by plaintiff in advance to Henderson as a fee to take the appeal. Punitive damages are also prayed for, but this demand was abandoned during the trial.

At the close of plaintiff’s case defendant moved for a non-suit on the ground that the plaintiff had failed to prove a cause of action. Defendant conceded liability for the $150 paid to the attorney to prosecute the appeal, but contended no other item of damage had been proved. The trial court ruled not only that there was a failure of proof, but that, as a matter of law, no other damages than the attorney’s

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fees could be recovered in this type of action. Accordingly, the trial court found that, although defendant was negligent, plaintiff’s damages were limited to the $150 paid as a fee for taking of the appeal. Judgment was entered in favor of the plaintiff in that amount. Plaintiff appeals.

The facts are simple. Plaintiff, as administrator, retained Henderson to represent him in an action in which he was a defendant. Judgment in that action was entered against appellant for $1,660. Appellant then employed Henderson to prosecute an appeal from that judgment, and, pursuant to agreement, paid him $150 for that purpose. Henderson filed the notice of appeal one day late. The finding that Henderson was negligent in this respect is supported by the evidence, and is not challenged by respondent. Appellant thereupon was forced to and did pay the judgment creditor $1,660, the amount of the judgment. Thereupon, this action was instituted against Henderson, who was then living. Henderson died during the pendency of the action and respondent, as administratrix of his estate, was substituted in his place.