Page:Federal Reporter, 1st Series, Volume 5.djvu/901

 SPÀNOLBB V. SBLLEBS. 889 �been decided against the plaintiff, and his petition dismissed; and the only benefit whieh the plaintiff oould have derived, if the case had been properly taken to the supreme court, from the procee4ing, 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 afBrmed, 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 would have, been reversed, or in anywise ohanged; nor does the statement of facts show that snch would have been the nec- essary or even probable legal resuit 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 ail 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 carefuUy examined, and from which, as bearing more direotly upon the case, I notice particularly the foUowing : �In Gamhert 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 titleto 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 liot 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 ����