The record-union., 1898-06-11
THE ADDITIONAL COUNSEL.
WHAT JUDGE McKUNE THINKS
OF NECESSITY FOR THEM.
In His Opinion Corporation Coun-
sci Devine Can Handle the
Henry Case Alone.

visibility Of employing extra counsel
to assist the Corporation Counsel in the
suit Of w. E. Henry against the city.
and Judge McKune being member OF
the firm that conducted the former suit
for the city and won it, a Record
Union reporter yesterday questioned
him as to his opinion on the subject.
DO you think" said the reporter,
that the former decision Of our Su-
perior Court affirmed by the Su-
preme Court, covers the case re-
Gently commenced in our Superior
Court of Henry VS.. the City OF
Sacramento, so as to conclude the
courts in the trial of the case now
pending; or is the matter open for re-
trial on it's merits?"
Il have examined the complaint IN
the case of Henry against the city, re-
Gently brought replied the Judge,
"and l am familiar with the case of the
same title decided by Judge Johnson
by judgment in favor Of the city for
costs, January 4, 1896.
'"The pending action is on the same
contract set out in the former COM
plant, and seeks damages of the city
for the same breach of that contract.
When matter has once passed to final
judgment, without fraud or collusion,
in court of competent jurisdiction, it
has become res judicata, and the same
matter between the same parties can
not be reopened or subsequently con-
sidered. In the two cases | have men
toned the parties are the same. The
matter disclosed in the pending action
passed to final Judgment in the same
court, January 4, 1896. The former
Nd or
collusion, and the judgment entered
was and is fnality.
"The rule 1 have stated is as old as
the common law, and is very often
applied to facts proved in court. 1t is
formulated in the Code of Civil Pro-
cedures (Section 1909, and that former
judgment may be pleaded in bar Of an
action recently brought. I am quite
sure the attorneys mentioned by our
Board of Trusteer for employment to
assist Corporation Counsel, would, if
asked, say such a plea would be
good"
What, then, is the necessity for the
city to employ additional attorneys to
assist Judge Devine in conducting the
defense in the case pending?" asked
the reporter.
l.
Judge McKune, land / have perfect
confidence in his ability as a lawyer.
The plea of former recovery is easy to
plead and prove. He could do that as
we'll as Messrs. Jones, Bruner & Bru-
ner. But there are other considera-
tions to take into account on that ques-
tion of employment of additional at
torneys. This matter is confided by
our charter to the Mayor and Board Of
Trustees, and I assume that they will
act in the premises as though the
claim Of Henry was against them per-
sonally.
They already have competent at
torney to represent them, paid by their
Trustees. The questions that must
come up for consideration in the argu-
ment Of the demurrer already filed have
mainly been argued on briefs filed in
the Supreme Court to which Judge
Devine and the Superior Court have ac-
cess.
"The whole case was ably reviewed
| by Justice Mcfarland in his decision
in the former case Q16 Cal, 62e), and
I think the demurrer now filed should
be sustained
This demurrer can (probably) be as
well presented by Judge Devine as by
any one the authorities of the city
could employ He may not have had
as much experience as some older men,
but in the matter of legal judgment he
is, think, the peer Of any of US. So 1
think the prudent course would be not
to incur debt for the additional at
torneys, at least until it is found neces-
sary to go to trial on the merits
Would the employment of additional
counsel render the city liable for a
large sum Of money as counsel fees 2"
was asked
THAT would depend somewhat on the
contract made with them.
When 1 was employed in the first
case, it was not to assist Corporation
Counsel, as he was disqualified My
negotiations were mainly with Messrs
Lawton and Bragg Of the board and
Mayor Steinman.
They took the matter in hand and
| insisted that the action was not
brought in good faith and that my fee
should not in any degree be fixed in
amount by the claim Of the plaintiff, as
he might just as well fix the amount
OF his damages at one or two millit1s
as at S553.OOO This L conceded, and
we fixed a fee absolute at $1,000 to
argue the demurrer, and if it was sus-
tanned and the case went to the Su-
preme Court, $500 additional l ad-
vised them that l was quite sure that
If l presented the law thoroughly the
demurrer would be sustained. Counsel
for defendant in the case pending has
the benefit of the authorities colIated
by me, as we'll as the opinion Of Justice
Mcfarland, and the city would be liza
bic for reasonable fee to the attorneys
employed, unless the contract provided
otherwise, and q reasonable fee might
be very low. 1t would not change the
matter to say in the contract that the
| further compensation should be left to
the Trustees, because if they should
fix the fee unreasonably small, the city
would still be liable for reasonable
fee
why did you think the demurrer the
better way?" asked the reporter
Well" replied the Judge, IF + had
put in an answer instead of a demur-
rer, the same result would have been
attained, except, probably, weeks of
time would have been spent in the
| trial; expert testimony without stint
would have been taken as to the quail
ity and quantity of the water from the
| wells east of the city; SO 1 took the
shorter cut to the same result, at small
expense to the city. 1 might have
Won more reputation by putting in an
answer and entering into a long and
expensive trial, but that is not my
way of doing business, and filed and
presented the demurrer as the best