
    Bennett G. Harter v. Charles Morris.
    An attorney is not liable to his client in damages for neglect of his professional duty, where the negligence complained of, in its legal effect, works no injury to his client.
    Error to the Superior Court of Montgomery county.
    Harter brought an action in the Superior Court of Montgomery county against Morris, to recover damages for alleged negligence on the part of Morris, an attorney, in a matter of professional business intrusted to him by Harter.
    The facts set out in the amended petition are substantially these:
    That Morris, as a licensed and practicing attorney, was employed by Harter to defend him from liability in an action in the court of common pleas of Miami county, brought against him jointly with four other parties as joint makers of a note, Harter being a surety; that Harter was ignorant of the law, and employed Morris, and relied wholly upon him to attend to every branch of the case until it. was entirely ended, and paid him his fees for so doing; that Harter was not liable in the action; and answered, setting up the fact that the plaintiff therein had extended the time for payment beyond the maturity of the note, without Harter’s consent, and that issue was. ^joined thereon; and that it does not appear from the records [493 and files' of that case what, if any, defense the other defendants therein made; but that the jury on the first trial wrongfully found a verdict against him, together with the other parties defendant. That Morris advised Harter to take a second trial of the cause, which Harter assented to, and thereupon devolved upon Morris the-duty of having the record and journals of the court so made as to-secure a second trial. That none of the other parties defendant desired or asked for a second trial. That thereupon Morris so negligently performed his duty as attorney for Harter, that he allowed the journal of the court to show that Harter and the other defendants asked for and were allowed a second trial of the cause. That it was the duty of Morris to have the journal show that Harter alone demanded and was allowed a second trial. That Harter was not required to give any attention to the case. That when the proper time came to enter into the bond, Harter wont to Morris, at his usual place of business in the county where the action was pending, and requested him to go with him and superintend the proper execution of the bond. That Morris declined to go,but advised Harter to go and intrust its execution to the clerk of the court, which he did. That the clerk, not knowing what the parties desired, or had asked of the court, prepared a bond, according to the tenor of the journal entry of the case, for a second trial of the case on behalf of all the defendants, and conditioned for the payment of any judgment that might be rendered against them. That Harter procured and furnished on his own responsibility the surety upon the bond, and that he was ignorant of the form required for the bond, and, not noticing its form, relied upon the clerk, and was advised by the clerk to sign the bond which he and his surety did. That on the second trial of the cause, a verdict and judgment wero rendered in favor of Harter, and against the other defendants. That by reason of the negligence of Morris in taking a second tidal for all the defendants, and not superintending the execution of the bond, but advising that Harter should intrust its execution to the •clerk, Harter and his surety were held liable upon the bond for the payment of the judgment rendered against the other defendants, 494] ^although Harter was successful in the action; and that Harter was compelled, by suit on the bond, to pay the judgment against •the other defendants to save his surety harmless, because the other defendants were insolvent. That Morris was his attorney also in the .•suit on the bond.
    .Morris demurred to the petition on the ground that the facts stated therein are not sufficient to constitute a cause of action. The court sustained the demurrer, and final judgment was entered .and exception taken.
    To reverse this judgment this petition in error is prosecuted.
    
      P. P. Lowe and J. A. Jordan, for plaintiff in error:
    We claim: 1. That it was the duty of Morris to superintend and .-see that a proper journal and record entry were made for a second ■trial on behalf of Harter alone ; 2. That it w.as his duty, when requested by Harter, to see that a proper bond was .executed; 3. 'That Harter had a right to rely on the clerk to execute the bond, when advised to do so by Morris; 4. That Harter was not in any •respect bound to exercise his own judgment as to the form or terms -of the bond.
    This is wholly a question of negligence in an agent in the discharge of his duty. Dunlap’s Paley’s Agency (4 Am. ed.), note 5 (E), 5; 1 Dowl. & Ryl. N. P., case 31; 4 B. & Ald. 202; 2 Wils. 325; Goafrey v. Dalton, 6 Bing. 460; 8 Mass. 57; 14 Johns. 304; 15 Pick. 440 ; 15 Mass. 317, 318; 2 Kent, 458, 463; 2 Starkie Ev. 132; 3 Johns. 175; 4 Camp. 451.
    If the court erred in holding Harter and his surety liable on the bond for a second trial for the payment of the judgment against the other defendants, yet that will not exonerate Morris from liability for his negligence to the extent of the injury arising from it.
    
      Conover & Craighead, for defendant in error:
    We claim that there was no error in the rulings of the court below in this case:
    1. Because there was no neglect of duty on the part of Morris, .as attorney in the original action.
    2. Because, if the court had doubt upon that question, yet there was no neglect which imposed any liability on Harter, *or [495 legally subjected him or his surety to any loss or damage. Harter .alone was entitled to a second trial, and his bond only legally made him liable on judgment, on such trial, against himself. Secrist et al. v. Barbee and Royston, 17 Ohio St. 425; Sprague, Adm'r, v. Childs, 16 Ohio St. 107.
   Day, C. J.

The question presented in this case arises upon a ■demurrer to the amended petition.

It appears from the petition that the case in which negligence is ■charged against the defendant, was an action against the plaintiff .and four others on a note. The plaintiff set up a separate defense, that he was surety on the note, and that the payee of the note had .extended the time, of payment in favor of the makers, his eo-defendants, without his consent. It is not stated in direct terms in the-petition that the other defendants were in default; but it is averred “that the record or files of said case do not show, nor does it appear-from said record, what was the character or nature of the answers, if any, that were filed by said four joint makers to the note.” From this statement, it would seem that the other defendants in that case-made no defense, but suffered judgment to go against them by default.

The defense of Harter was in its nature personal and separate-from the other defendants. The only issue made in the case was-upon his individual answer; he alone, therefore, was entitled to a second trial. He alone gave the undertaking required to secure a second trial; but in its terms it purported to bind the makers for-the payment of any judgment that might be rendered against the-defendants.

Such proceedings were had on the second trial that Harter, the-plaintiff in this case, was discharged from the note, and judgment, was rendered in his favor, but against the other defendants for the-amount of the note.

Suit was brought against Harter on the undertaking, and a recovery had against him; but there is no claim of negligence against the defendant in the defense of that suit. It was in the suit on the-undertaking that the misfortune of the plaintiff arose, and not in the other; for the judgment in his favor, in the case in which the-496] undertaking was given, discharged *his liability thereon.. The legal effect of the undertaking was to render him liable only for such judgment as might be rendered against him. Secrist v. Barbee and Royston, 17 Ohio St. 425. There was, then, no negligence on the part of the defendant, to the legal prejudice of the' plaintiff, in the case as made in the petition. It follows, therefore, that the judgment of the court below, in sustaining the demurrer to the petition, was right, and that it must be affirmed.

Brinkerhoff, Scott, Welch, and White, JJ., concurred.  