Bissell v. Dean

By the Court. Ingraham, First J.

The summons, was sufficient. All that is required in regard to the cause of action *174in the summons is a statement to show that it is for a cause of which the court has jurisdiction. This is answered by an allegation of work and labor, or services rendered, or, as in this case, for professional services. Either would be enough to show that the claim arose upon contract.

The evidence on the inquest in the court below was sufficient to establish a prima facie case of indebtedness for the plaintiff’s services in the bankrupt proceedings. The clerk from the U. S. District Court Clerk’s Office, producéd the papers upon which, as he states, the defendant obtained his discharge, and which were conducted by the plaintiff, as his attorney; and the value of the plaintiff’s services was proven by another witness.

The affidavit of the defendant shows as an excuse for suffering the default to be taken, that he had paid for the plaintiff’s services in the bankrupt proceedings, and was under a misapprehension in relation to the object of the action, supposing the plaintiff’s claim to be for the fee on the motion, which he did not intend to dispute. The plaintiff denies that he has been paid. He, however, admits the receipt of $20 on account of the bankrupt proceedings, but claims that in view of the services proved on the trial, and other services rendered by him to the defendant, the amount of the judgment is due him. These other services, which are set out in the plaintiff’s affidavit, cannot be available in this appeal, because they formed no ground of recovery upon the trial. The $20 were not credited upon the trial.

The excuse for not appearing was sufficient, and the fact that the defendant was not credited with $20 paid, shows that injustice has been done in the judgment rendered below. I think, therefore, it should be opened and a new trial ordered, but the plaintiff should be paid the $10 which the defendant admits to be due, and the costs of the court below.

Upon payment of these sums within ten days, the judgment is suspended and a new trial ordered, the time of the trial to be •on the 14th of June, at the opening of the court.

Ordered accordingly.