Zimmer v. Kilborn (1913) · DecisionDepot

Zimmer v. Kilborn

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court May 29, 1913 No. L.A. No. 3123.Published

Before: Melvin

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Holding. The court held that a plaintiff cannot challenge the sufficiency of an answer for the first time on appeal after the case has proceeded to trial, and that the trial court properly denied the motion to set aside the judgment because the jury verdict was consistent with the defendant's theory of a contingent fee contract.

Issues

Whether a plaintiff may challenge the sufficiency of an answer for the first time on appeal after the case has been tried on the merits.
Whether the trial court erred in denying a motion to set aside a judgment based on a jury verdict that reflected a contingent fee defense.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Another reason why the order should be affirmed is that by granting it the court would have ignored the defense that the business was undertaken on an agreement for payments of fees contingent upon success.”

Synopsis

APPEAL from an order of the Superior Court of Los Angeles County refusing to set aside a judgment and to enter a new judgment, based upon the verdict, for the full amount sued for in the complaint. Stanley A. Smith, Judge presiding.

The facts are stated in the opinion of the court.

[522]

MELVIN, J.

This is an appeal by plaintiff from an order denying his motion, made after judgment in his favor for the sum of five hundred dollars, to set aside said judgment and to enter a judgment, based upon the verdict of the-jury, for the amount set out in the complaint as being due, together with interest thereon.

The complaint alleged in three counts that J. L. Murphey and the partnerships of Murphey & Schmidt and Murphey

Poplin (all assignors of plaintiff) performed certain services as attorneys at law for the defendant; that defendant agreed to pay for such services the amounts named, aggregating with interest more than three thousand dollars. In her answer to each of the counts, after denying upon information and belief the existence of the partnership mentioned in the count she denied that the services were “reasonably or at all” of the value claimed or “that she agreed to pay said sum for said alleged services.” Further answering she admitted that she ' did enter into a contract with J. L. Murphey whereby he was to perform certain services as her attorney, his compensation to be contingent upon success in the matters undertaken and that such matters were still pending and undetermined. She specifically denied that she had ever employed either of the partnerships mentioned in the complaint.

The verdict of the jury found for the plaintiff in the sum of five hundred dollars. Appellant’s position is that said verdict is in his favor on all the issues made by the pleadings, and that the answer by its form did not put in issue the value of the services performed. He asserts that by denying that the exact sum stated in each count of the complaint was the reasonable value of the services mentioned and that she had agreed to pay that amount, she thereby made “admissions of the value of the services to be any sum less than the alleged amounts, and admission of agreement to pay therefor the sum alleged less the smallest fraction of a dollar on each cause of action; and therefore, there was no issue thereon for the jury to try.” Even if we were to conclude that the answer did not sufficiently traverse the allegations of the complaint we could not disturb the court’s action in denying plaintiff’s motion. There was no demurrer to the answer and •the case went to trial. We must assume in' favor of the

Zimmer v. Kilborn

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Synopsis

MELVIN, J.

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