Garesche v. President of St. Vincent's College

1. Practice in Supreme Court: erroneous instructions. A judgment should not be reversed for error in instructions given for respondent'when precisely the same instructions are given for appellant. ■2. Evidence. If there is danger that evidence properly admitted for ' one purpose may be used by the jury, in making up their verdict, for another and improper purpose, the court should be asked to instruct them as to its proper use. If this is not done, and the appellate court cannot see that they have made a mis-use of it, and there is other evidence sufficient to sustain the verdict, the judgment will not be reversed because of the possible error.

Appeal from Cape Girardeau Court of Common Pleas.—Hon. Hamilton G. Wilson, Judge. This was a suit for the value of professional services rendered by the plaintiff, as attorney, to the defendants, in certain suits brought against them by one Dougherty, The first suit was brought to set aside and annul certain deeds conveying the site of defendants’ college, the site of a Catholic church and a farm near the town of Cape Girardeau. When plaintiff, who resided in St. Louis, was employed to defend this suit, he reserved the right to have local counsel if necessary; but wishing to save the defendants unnecessary expense, and believing at that time that it would not be necessary, he did not request the employment of any one. At the return term, the plaintiff was sick with small-pox and could not attend. The term lasted two weeks, and on the day before the beginning thereof, the defendants were informed by Dougherty’s counsel of plaintiff’s inability to be present. No one appearing for the defendants, and no answer having been filed, a judgment by default was entered, which was at the same term made final. Upon learning this fact, on the day before that on which the court adjourned, the defendants employed an attorney at Cape Girardeau to look after the case, who>when on his way to Jackson where the court was in session, met Dougherty’s attorney, who informed him that an interlocutory decree had been rendered, but that it would-be set aside at the next term, and he, thinking it unnecessary to go to Jackson, thereupon returned home. Having obtained a final decree in the suits to set aside the deeds, Dougherty then instituted an action of ejectment against the defendants to recover possession of the property described in said deeds. The plaintiff attended the succeeding term of court, had both the final and interlocutory decrees set aside, obtained leave to plead, and filed a demurrer to the petition, which was sustained, and final judgment entered thereon. From this judgment Dougherty appealed to this court, where the sole question decided was as to the right of the circuit court to set aside the final judgment at a term subsequent to that at which it was rendered. 53 Mo. 579. There was testimony tending to show that in consequence of the plaintiff’s sickness, an engagement was-entered into by the attorney of Dougherty to continue the case, and that he so informed the defendants. Mr. Brown, the attorney, swears that he told the defendants to employ counsel and that he never entered into any agreement to continue the cause. Testimony of professional men was-introduced by both parties as to the value of the services rendered, based upon hypothetical statements of the facts made by them respectively. All the correspondence between the plaintiff and Father O’Keefe, who represents the-defendants, relating to the litigation, was also introduced. The defense set up in the answer was, that the greater portion of the services rendered by the plaintiff became necessary by reason of the default and final judgment rendered thereon, in consequence of his negligence. There was a verdict and judgment for the plaintiff, from which defendants appealed to this court, alleging as errors the action of the court in permitting plaintiff to read certain letters in evidence, and in giving certain instructions prayed by plaintiff. This court sustained both of these objections to the judgment, and ordered the same to be remanded; but upon motion of respondent a re-hearing was granted.