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126 Ind. 477

Nickless v. Pearson

Indiana Supreme Court

Decided January 14, 1891

Indiana Supreme Court · decided 1891-01-14

<p>Appeal. — Question not Presented. — Where it is stated in the motion for a ■ new trial and in the affidavit supporting it, that a written request for written instructions was made and overruled, but such request does not appear in the record or in the bill of exceptions, no question is presented to this court on the ruling denying the request.</p> <p>Supbeme Coubt. — Law of Corse. — A decision by the Supreme Court on appeal is the law of the case and governs it throughout all of its subsequent stages, even in the Supreme Court upon another appeal.</p> <p>Pobmeb Adjudication. — Demurrer.—The plaintiff, in a former action, between the same parties,alleged in his complaint that he had assigned to the defendant, an attorney, a note as collateral security to secure the payment of a judgment recovered by the defendant against him, and that the defendant took a judgment waiving valuation and appraisement laws, which was not authorized by the note, whereby the plaintiff suffered loss. A demurrer to the complaint was sustained, and on appeal the judgment was affirmed. The complaint in the present action, alleging the same facts, proceeds upon the theory that the defendant is liable for the negligence alleged in the collection of the note, not as attorney, but as assignee.</p> <p>Held, that the adjudication on the demurrer in the former action was conclusive on the parties, and that, therefore, the demurrer to the complaint in the second action should have been sustained. Coffey, J.,' dissents.</p> <p>Same. — Special Verdict. — Where the jury find the facts as to a former case between the same parties, and it appears that the judgment therein rendered is a bar to a second action, the court may disregard a finding by the jury that the matters involved in the second action were not adjudicated in the first, and render a verdict for the defendant on the special verdict. Whether the facts found by the jury constitute a former adjudication is for the court to determine.</p>

Relies on Railroad Company v. National Bank · Felton v. Smith · Citizens Loan Fund & Savings Ass'n v. Friedley

Good law ✅— No negative treatment on recordhow we know

Decided 1891-01-14

How this case has been cited

Cited by 21 later decisions — most recently October 1944

21 state decisions

90189119001910192019301940decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1Dissenting Opinion.

Coffey, J.

¶2— I regret my inability to agree with the conclusion reached in the principal opinion in this case. I recognize to its fullest extent the principle that where this court decides any particular question in a cause, such decision is the law of that case throughout. The case of Nickless v. Pearson, 81 Ind. 427, is not the case now before us. In that case the complaint was drawn and the case proceeded upon the theory that the relation of attorney and client existed between the parties, and the rules of law applicable to that relation were applied. This is a new and another case, which proceeds upon the theory that the appellee held a promissory note, the property of the appellant, as collateral se-eurity, which by the negligent and wrongful conduct of the appellee was lost.

¶3The law which governs the relation of attorney and client is quite different in many respects from the law which governs pledgeor and pledgee.

¶4An attorney is always liable to his client for the consequences of his ignorance, carelessness or unskilfulness, in the management of the client’s business. Reilly v. Cavanaugh, 29 Ind. 435; Walpole v. Carlisle, 32 Ind. 415; Skillen v. Wallace, 36 Ind. 319; Citizens Loan Fund, etc., Ass’n v. Friedley, 123 Ind. 143.

¶5*491Where the relation of client and attorney exists, the client may, at any time, when dissatisfied with the manner in which the attorney is discharging his duties, discharge him and employ some other person. Where the attorney prosecutes suit for the client, ordinarily, the judgment is taken in the name of the client, and the client has the power to control the collection of the judgment.

¶6Such is not the case where a claim has been assigned as collateral security.

¶7The assignment vests the title in the assignee, and such assignee takes judgment in his own name. The assignor or pledgeor loses all control over the security, and the assignee alone can receive and receipt for the money due, and has absolute control over its collection. Felton v. Smith, 84 Ind. 485; Colebrooke Collateral Securities, section 90; Valette v. Mason, 1 Ind. 288; Rowe v. Haines, 15 Ind. 445.

¶8If the collateral security consist of negotiable instruments the assignee is required to demand payment of the same at maturity, and in case of non-payment to givé proper notice to charge the parties liable thereon. If the assignee neglects this duty, so that the endorsers, or other parties thereto, are discharged, he is responsible for the loss. Railroad Co. v. Nat’l Bank, 102 U. S. 14; Rice v. Benedict, 19 Mich. 132; McLemore v. Hawkins, 46 Miss. 715; Dayton v. Trull, 23 Wend. 345; Cutting v. Marlor, 78 N. Y. 454.

¶9Where evidences of debt have been assigned and transferred by a debtor to his creditor as collateral security for the payment of such debt, it is the duty of such assignee to exercise reasonable and ordinary care and diligence in the collection of such collaterals. Kiser v. Ruddick, 8 Blackf. 382; Dugan v. Sprague, 2 Ind. 600; Slevin v. Morrow, 4 Ind. 425; Reeves v. Plough, 41 Ind. 204.

¶10If upon a pledge of collateral securities so as to vest the title thereto, the pledgee by his negligence, or his wrongful transfer of them, or dealings with them, fails to collect the same of the parties bound thereon, when it might have been *492done, and the pledgeor is injured by such conduct, or negligence, the pledgee is liable for such injury. Powells v. Henry, 27 Ala. 612; Wood v. Matthews, 73 Mo. 477; Spalding v. Bank, 9 Pa. St. 28; Roberts v. Thompson, 14 Ohio St. 1; Whitteker v. Charleston Gas Co., 16 W. Va. 717; Stewart v. Bigler, 98 Pa. St. 80.

Filed. Jan. 14, 1891.

¶11When the opportunity of collecting collaterals is lost by the insolvency of the parties thereto, by reason of the negligence of the pledgee, when with ordinary care the same might have been enforced, the pledgee is bound to account to the pledgeor for the full value thereof. Hanna v. Holton, 78 Pa. St. 334.

¶12In this case the appellant transferred to the appellee a promissory note as collateral security for a judgment. The maker of such note had ample property subject to execution out of which such note could have been collected. The appellee took a judgment on said note in his own name, not authorized by law, by reason of which the property was sacrificed and the note lost. In taking such judgment and thus wasting the property of the maker of the note I do not think it can be said that the appellee exercised ordinary care and prudence. In other words, the debt was lost by reason of the failure of the appellee to exercise ordinary care in his. effort to collect the same, and he is, in my judgment, liable for such loss.

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