been decided against the plaintiff, and his petition dismissed; and the only benefit which the plaintiff could have derived, if the case had been properly taken to the supreme court, from the proceeding, would have been by the court reversing the judgment of the district court, and granting him a new trial, or rendering judgment in his favor. If the judgment had been affirmed, no benefit would have resulted to him from the proceeding; and there is nowhere in the petition any averment that the judgment of the court below wouldhave been reversed, or in anywise changed; nor does the statement of facts show that such would have been the necessary or even probable legal result if the court had fully considered the case, for the petition shows that the case was not only heard upon the allegations of the pleadings, but upon all the evidence adduced by the parties; and it does not appear that the evidence was of that character which would have required the court to have given any different judgment from the court below. In support of the right to maintain the action, and the sufficiency of the petition, I have been referred to a number of authorities, which I have carefully examined, and from which, as bearing more directly upon the case, I notice particularly the following:

In Gambert v. Hart, 44 Cal. 542, an attorney was sued for negligence in failing to file and serve a proper notice of a motion for a new trial. The plaintiff in the action had been sued in ejectment, and his defence consisted of a claim of title to the lots, derived through a certain judgment, execution, sheriff's sale and deed; but this judgment, according to decisions of the supreme court at the time of the trial, was void, which rendered the defence unavailing, and judgment was rendered against him. The attorney attempted to get a new trial, but did not take the legal steps to do so, by which his motion for a new trial was denied, and an appeal was prosecuted and dismissed for the reason that demand for a new trial had not been properly made; but at the same term of the court at which the appeal was dismissed, the court, in Hahn v. Kelley, made valid such judgments as those under which defendant claimed to defend, and which before were void. In disposing

of that case the court says: "The appeal which the plaintiff prosecuted was dismissed, it appears, at the same term at which Hahn v. Kelley was decided, because of the defects of the statement, which prevented us from considering the appeal on its merits. If we had been at liberty to look into the merits of the case, it may be that it would not have been decided until after the decision of Hahn v. Kelley, or, if decided before, the presumption is that it would have been decided in accordance with the principles announced in that case, which was decided at the same term." So that it clearly appears in this case that if the attorney had properly taken it to the supreme court, that the judgment of the court below would have been reversed, and his client's property saved. The loss of the property was therefore the necessary result of the attorney's negligence. Drais v. Hogan, 50 Cal. 121, was an action brought against an attorney for negligence in not taking the proper steps to secure a new trial. The action in which the negligence was charged was a suit against husband and wife, which the attorney was employed to defend, in which it was claimed that there was due from the wife a sum of money. The complaint did not contain an averment that the wife had separate property, or that the contract concerned her separate property. There was judgment against the defendants, and a motion for a new trial filed, and new trial granted; but, upon appeal to the supreme court, the order granting a new trial was reversed, for the reason that the attorney had not taken legal steps to secure it, and in their complaint the negligence charged was the improperly procuring the order for a new trial; and they allege in their complaint that if a new trial had been granted they would have been able to establish, as a legal defence, that Lucinda I. Drais, (the wife,) when she entered into the contract, was a married woman, and was the owner of no separate property, and that she was not a sole trader. This case was decided by the court upon the ground of the negligence of the attorney in not taking an appeal from the judgment itself, rather than for his negligence in not taking the proper steps in obtaining a new trial. The court says: "The complaint upon which

the judgment against Lucinda Drais was founded was radically defective, and wholly insufficient to support the judgment. An appeal from the judgment itself would have brought up the pleadings as a part of the judgment roll, and must have terminated in a virtual defeat of the action. An inspection of the record in that case, in view of the uniform decisions of this court, from the case of Rowe v. Kohle, 4 Cal. 285, to the present time, as to the capacity, or rather want of capacity, of a married woman to bind herself by such a contract as was alleged in that case is decisive upon this point. In this view it was inexcusable in the defendant to have permitted the time limited by statute for such an appeal from the judgment itself to pass away, and so allow the right of the defendant in that action to become lost in the abortive attempt to obtain a new trial, when such new trial, if it had been obtained, was not necessary for her protection under the circumstances of the case." So that it clearly appears, both as matter of fact and of law, that upon the new trial no judgment could have been rendered against the plaintiff; and that, upon appeal from the judgment rendered, it would have been reversed, and judgment rendered in her favor. The damage resulting to the plaintiff in being compelled to pay the judgment against her was the direct result. of the attorney's negligence in either case.

In Skillen v. Wallace, 36 Ind. 319, the plaintiff claimed to be the owner of a valuable piece of ground in the city of Indianapolis, and brought suit to recover the possession thereof. The jury in that suit brought in a verdict for the plaintiff for the whole ground, which was of great value; that when the verdict was brought in by the jury the attorney took and altered it so as to cover a small and totally valueless piece of the ground, and asked the jury to find the verdict thus altered, which they did, and which the plaintiff in this case avers damaged him to the amount of $1,000. A demurrer was filed to the petition, and sustained by the court below, but was reversed on error by the supreme court. The damage in this case was the direct result of the act of the attor

ney in changing the verdict, and but for which the plaintiff would have recovered the entire land.

In Walker v. Goodman, 30 Ala. 482, the declaration alleged that the defendants conducted the suit, in which they had been employed by the plaintiff, negligently and unskilfully, in not having a certain writ of attachment, affidavit, and declaration drawn up and filed according to the laws of the state and the rules of the court; that by reason of said negligence and unskilfulness she was prevented from recovering judgment, and was forced and compelled to release and dismiss the levy of said writ of attachment, by reason whereof the plaintiff was prevented from recovering her demand. This declaration was demurred to, and the [court below sustained the demurrer; but this judgment was reversed by the supreme court upon error. This case also shows that the damage was the direct result of the negligence of the attorney. Goodman v. Walker, Ex'r, 30 Ala. 482, was an action brought by the attorneys for their fees, and the court, finding the facts as in the last-preceding case, held that lawyers were responsible to their clients for all injury traceable to their want of skill and diligence.

All these cases show clearly that but for the negligence the loss would not have occurred, and therefore resulted directly from it. I am aware that Wharton, Neg. 752, says that when negligence has been proved, in consequence of which judgment has gone against the client, it is not incumbent upon the client to show that but for the negligence he could have succeeded in the action. It is for the solicitor to defend himself, if he can, by showing that the client has not been hurt by his negligence. And the same doctrine is stated by Wells' Attorney and Client, 298; but each of these authors, in support of the text, refers to Godefroy v. Jay, 7 Bing. 413, and to Harter v. Morris, 18 Ohio St. 492, as holding a different doctrine, and these are the only authorities. they refer to upon this proposition. I have examined the case of Godefroy v. Jay carefully. In that case the attorney was employed to defend an action brought against the plain

tiff. The attorney never gave any attention to the cause, but permitted judgment to be taken against his client by default. His client was compelled to pay the judgment, and brought his action to recover from the attorney for negligence. Under those circumstances, it was held by the court that the plaintiff was not bound to show that judgment would not have gone against him but for the negligence, but it was for the attorney to show that the defendant was not damnified by such negligence.

The decision in that case was based upon Marzetti v. Williams, 1 Barnwell & Adolphus, 415, which was an action in tort by a depositor against his banker for not paying a check drawn by him when he had funds sufficient to do so, and it was contended that special damages must be shown; but the court held that it was an action substantially upon a contract, and that if the plaintiff should show a breach of that contract he would be entitled to nominal damages. If the doctrine of the last-mentioned case would apply to this, it would entitle the plaintiff to nothing beyond nominal damages; and the doctrine of Godefroy v. Jay is applied by Sherman & Redfield, Negligence, 221, only to cases where an attorney employed to defend a cause does nothing. If the principle of that case be limited in its application to such a case, it might not be objectionable; but if it is claimed to be applicable to every case where negligence is alleged, then it is in conflict with the current of American authority.

In the present case the district court, which was composed of at least three judges learned in the law, upon the examination of the testimony rendered judgment upon the merits against the plaintiff, and the only negligence alleged was the failure to make a motion for a new trial, so that the case could have been examined by the supreme court to ascertain if, upon the evidence, the judgment should have been reversed, which it would not have done, according to its repeated decisions, unless the judgment was clearly and manifestly against the evidence, which cannot be presumed. To say in such a case that when the plaintiff has established negligence that he is entitled to judgment for all he could