Page:Federal Reporter, 1st Series, Volume 5.djvu/902

 890 FEDEEAL BEPOBTEB. �of that case the court says : "The appeal which the plaintiff prosecuted was dismissed, it appears, at the same term at which Hahn t. Kelley was decided, because of the def ects of the state- ment, which prevented us from considering the appeal on it& 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. Kelley, or, if decided before, the presumption is that it would bave been decided in aecord- ance with the principles announced in that case, which waa decided at the same term." So that it clearly appears in this case that if the attorney had properly taken it to the sOpreme court, that the judgment of the court below would have been reversed, and his client's property saved. The los» ôf the property was therefore the necessary resuit of the attor- ney's negligence. Drais v. Hogcm, 50 Cal. 121, was an action brought against an attorney for negligence in not taking the proper steps to secure a new trial. The action in which the negligence was charged was a suit against husband and wife; which the attorney was employed to defend, in which it was claimed that there was due from the wife a sum of money, The complaint did not contain an averment that the wife had separate property, or that the contract con- cerned her separate property. There was judgment against the defendants, and a motion for a new trial filed, and new trial granted; but, upon appeal to the supreme court, the order granting a new trial was reversed, for the reason that the attorney had not taken legal steps to secure it, and in their complaint the negligence charged was the improperly procuring the order for a new trial ; and they allege in their complaint that if a new trial had been granted they would have been able to establish, as a legal defence, that Lucinda I. Drais, (the wife,) when she entered into the contract, was a married woman, and was the owner of no separate property, and that she was not a sole trader. This case was decided by the court upon the ground of the negligence of the attorney in not taking an appeal from the judgment itself, rather than for his negligence in not taking the proper steps in obtaining a new trial. The court says : "The complaint upon which ����