The negligence imputed to the defendant is, first, his failure to file and serve a proper notice of the motion for new trial; second, his submission of the motion before the statement in support of it had been settled or agreed to. At the trial the plaintiff called the witness, Benham, to prove that these acts amounted to negligence in the defendant, as an attorney. But the Court excluded the evidence, and this ruling is assigned as error. The witness was not called to prove any fact in the case, and his evidence, if admitted, would have been only an expression of his opinion as an attorney, that the alleged acts or omissions of the defendant amounted to negligence in law. This was a question for the Court, and not for the witness to decide. The facts «being admitted or proved, it was a question of law for the Court whether they establish negligence in the defendant. The evidence was properly excluded. The plaintiff also offered in evidence the remittitur from this Court in the case of Quivey v. Baker, but the Court excluded it on the ground that it would take judicial notice of the decisions of this Court. If the Court erred in excluding the evidence, it was an error which did the plaintiff no harm. We must presume that the Court did take judicial notice of the decision, as it announced it would do, and that the plaintiff had the benefit of it as fully as though the evidence had been admitted.
The only other ground of error relied upon is, that the evidence was insufficient to justify the decision and judgment. But there is a substantial conflict in the evidence on the question whether the defendant was retained or relied upon to conduct the case as the attorney, or only volunteered, without a retainer, as counsel to consult and advise with another attorney charged with the defense. The defendant testifies that the written contract between the plaintiff and *550himself referred to the trial in the Supreme Court; and if I understand his testimony correctly, it is to the effect that whilst the action was pending in the District Court he was not retained by the plaintiff to conduct the case, but volunteered, as an act of friendship, to consult and advise with Mr. Yoell, whom he understood to have been retained as the attorney. The plaintiff" and Mr. Yoell however, testify strongly to the contrary; and it cannot be denied that the preponderance of the evidence on this point appears to be in favor of the plaintiff. But it is for the Court below to weigh the evidence when it is conflicting; and when the conflict is substantial, the practice of this Court is not to disturb the judgment.
Judgment affirmed.
Mr. Justice Wallace, having been counsel in the Court below, did not sit in this case.
Mr. Justice Rhodes dissented.
• After rehearing, the following opinion was filed at the October Term, 1872:
By the Court, Crockett, J.:The Court below did not base its decision in favor of the defendant on the ground that he had not been retained by the plaintiff to conduct the defense of the action to Quivey v. Gambert. On the contrary, it directly appears from the opinion of the Court (which escaped our attention at the former hearing, because it formed no part of the printed transcript as originally filed, and was only a manuscript copy subsequently permitted to be filed) that the defendant was retained and did, in fact, conduct the defense of that action. Yor does the Court find that the defendant conducted the defense with proper skill, care, and diligence, but that he conducted it “ honestly to the best of his knowledge and *551ability,” and that “it was undoubtedly a mistake, if not a blunder, to present the motion for a new trial without a certified statement.” The Court, however, held that this mistake or blunder did not injure the plaintiff", for the reason that under the law, as it had been previously expounded by this Court, the judgment in Quivey v. Gambert was correct, and would not have been reversed on appeal; and that, therefore, the plaintiff suffered no damage by reason of the mistake or blunder of the defendant, which prevented the motion for a new trial from being heard on its merits. The Court further says that “ afterwards the Supreme Court, in ''Hahn v. Kelly, without in express terms overruling the cases I have mentioned, changed its opinion of the law announced in them, and in consequence the judgment through which the plaintiff claimed title to the property, and which according to them was void, became valid. The change, however, came too late for the plaintiff'. He suffered from the preterlapsed law and could not have his rights readjudicated by that which was announced to take its place. The judgment against him was affirmed at the very term at which Hahn v. Kelly was decided.” But, if it be conceded that the decision in Hahn v. Kelly wrought the change imputed to it by the Court below, the conclusion by no means follows that the plaintiff might not have had the benefit of the alleged change in the opinion of this Court on a rule of law, provided his appeal has been brought here in such form that we could have considered it on its merits.
The appeal which the plaintiff prosecuted was dismissed, it appears, at the same term at which Hahn v. Kelly was decided, because of defects in 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. Kelly, or, if decided before, the presumption is it would have been decided in accordance with *552the principles announced in that case, which was decided at the same term. The Court, therefore, erred in holding that the mistake or “ blunder ” of the defendant could not have resulted in a damage to the plaintiff. The Court having found that the defendant was retained by the plaintiff to conduct the defense in Quivey v. Gambert, and that he submitted the motion for a new trial without a certified statement to support it, in consequence of which omission the motion could not be considered on its merits in the Court below, nor in this Court on appeal, the only remaining question is whether this omission, if unexplained, constituted such negligence or want of skill as to render the defendant liable in damages. In actions of this character against attorneys, the rule is well settled that when the facts are ascertained the question of negligence or want of skill is a question of law for the Court. But there is a considerable conflict in the authorities as to the degree of diligence and skill to which an attorney shall be holden and for which the law implies that he contracts with his client. In the English Courts there have been cases decided by eminent Judges, in which the rule is laid down that an attorney is liable only for gross negligence, .crassa negligentia, or for gross ignorance in the conduct of a cause, resulting in a damage to the client. (Bakie v. Chandless, 3 Camp. 17; Purvass v. Landell, 12 Clark and Finn, 91; Godefroy v. Dalton, 6 Bing. 468.)
The rule firmly established in this country by the weight of authority is that an attorney is bound to use ordinary skill and care in the course of his professional employment.
In the late work of Shearman & Bedfield on Negligence, section two hundred and twelve, it is said: “ The true rule of liability undoubtedly is, that an attorney is liable for a want of such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise.” This is the principle recognized in Wilson v. Russ, 20 Maine, *553421; Goodman v. Walker, 30 Ala., N S., 482; Cox v. Sullivan, 7 Ga. 144, and numerous other American cases, and, we think, is not only established by authority, but is founded in reason and justice.
Applying this rule to the present case, we are of opinion that upon the facts disclosed by the record, the defendant did not conduct the plaintiff’s case with ordinary care and skill, in submitting the motion for a new trial without a certified statement to support it. The statute, which had been in force for many years, not only required such a statement, but there had been numerous adjudications of this Court, showing the necessity of a statement of that character, in order to enable the Court to hear and decide a motion for new trial in such a case as Quivey v. Gambert on its merits. That such a statement was necessary in such a case was well understood by the profession, and it had been for many years the practice to prepare such statements in similar cases. In omitting to perfoi m his duty in this respect, the defendant, as the facts are here presented, was guilty of negligence, or betrayed great want of skill in his profession.
Judgment reversed and cause remanded for a new trial.
Mr. Chief Justice Wallace, having been of counsel in the Court below, did not sit in the case.