71 F. 924 | D. Alaska | 1896
While the courts are vested with a large discretion in determining applications of this character, its exercise must be confined to the limits prescribed by statute, which, so far as this court is concerned, are laid down in section 102, pp. 242, 243, Hill’s Code Or. This section provides that the court may, in its discretion, “relieve a party from a judgment, order or other proceeding, taken against him through his mistake, inadvertence, surprise, or excusable neglect.” The only testimony submitted in support of the application is the affidavit of one of the attorneys for the defendant. The allegations therein set forth are, substantially, to the effect that he was under the impression that the time to answer was 60 days, but on examination of his office docket on the morning of the 23d of December,
The summons and complaint both bear the signatures of Johnson & Heid and J. F. Malony, plaintiffs’ attorneys, and the complaint is verified by Bonnifield. Service of a notice of appearance for the defendant by his attorneys is admitted May 4, 1895, by “J. F. Malony and Johnson & Heid, Plaintiffs’ Attorneys,” as is also an admission of service, of same date, of notice of motion to make more definite and certain. Service of the demurrer is admitted in the same manner, and in all the proceedings with reference to a writ of attachment and its discharge, subsequently occurring in the cause, notices are addressed by defendant’s attorneys to “J- F. Malony and Messrs. Johnson & Heid, Attorneys for Plaintiffs.” On the 19th day of November, ' 1895, the plaintiff Bonnifield served a written notice upon Malony, discontinuing his services, which, however, was not filed until the 10th day of January, 1896, the day upon which all the papers having reference to this motion were filed. The record discloses no changes as to Johnson & Heid, nor any proceedings for any change at all, as provided by statute (Hill’s Code, pp. 688, 689, §§ 1042, 1043). Upon the record, then, as it appeared upon the 26th day of December, 1895 (the day the default was entered), the same attorneys who signed the original
There is no principle of practice better settled in our American law than that an appearance in court by an attorney for a client carries with it the presumption of authority to appear. This rule was early laid down by Chief Justice Marshall, speaking for the supreme court of the United States, in the case of Osborn v. Bank, 9 Wheat. 739. The learned chief justice there says: “Certain gentlemen, first licensed by the government, are admitted by order of court to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state or of the Union.”
From the multitude of authorities affirming the rule here stated, the following have been collated: Hill v. Mendenhall, 21 Wall. 453; Insurance Co. v. Oakley, 9 Paige (N.Y.) 496; Kelso v. Steigar, 75 Md. 376, 24 A. 18; Steffe v. Railroad Co., 156 Mass. 262, 30 N.E. 1137; Bank v. Fellows, 28 N.H. 302; Taylor v. New Orleans, 41 La.Ann. 891, 6 So. 723; Norberg v. Heineman, 59 Mich. 210, 26 N.W. 481; Reynolds v. Fleming, 30 Kan. 106, 1 P. 61; Vorce v. Page, 28 Neb. 294, 44 N.W.
The burden of proof rests upon him who denies the authority. Weeks, Attys. § 344. The presumption of authority is not overcome by affidavit of opposing counsel, challenging authority, if the attorney appearing presents counter affidavit, asserting authority. Ring v. Glass Co., 46 Mo.App. 374. And allegations of belief are not sufficient. Facts must be stated. Valle v. Picton, 91 Mo. 207, 3 S.W. 860.
It may be observed here that the absence of any testimony on the part of Bonnifield concerning this matter is quite significant, as it appears that he was in Juneau on the 24th of December, 1895, when he signed the stipulation.
The practice is also well settled that the authority for an attorney to appear cannot be called into question except by a motion directly for that purpose, based upon affidavits, showing, in the first instance, prima facie a want of authority; and, upon the hearing, such want must be established by clear and positive proofs. The proceeding may be by motion to vacate the appearance, to dismiss the action, or for an order requiring authority to be shown; and, in cases where the validity of an order, judgment, or decree depends on the jurisdiction of the court over the person of a party, acquired solely by an appearance of attorneys, the authority of such attorney may be attacked upon a motion to vacate the order, judgment, or decree. In the absence of some such proceeding, directly challenging the authority, the court will not hear or inquire into the question of the authority of the attorney for his appearance. Hollins v. Railroad Co. (Sup.) 11 N.Y.S. 27; Insurance Co. v. Pinner, 43 N.J.Eq. 52, 10 A. 184; Hill v. Mendenhall, supra; McKiernon v. Patrick, 4 How. (Miss.) 336; Howe v. Anderson (Ky.) 14 S.W. 216; Reynolds v. Fleming, supra; Williams v. Canal Co., 13 Colo. 469, 22 P. 806, affirmed in Dillon v. Rand, 15 Colo. 372, 25 P. 185; Winters v. Means, 25 Neb. 241, 41 N.W. 157; Turner v. Caruthers, 17 Cal. 432; People v. Mariposa Co., 39 Cal. 683.
This brings us to the consideration of the stipulation made on the 24th of December, 1895, by and between Bonnifield, as plaintiff, and the attorneys for the defendant, extending the time to answer. The court has no doubt whatever that this stipulation must be disregarded. The line of demarkation between the respective rights and powers of an attorney and client is clearly defined. The cause of action, the claim or demand sued upon, the subject-matter of the litigation, are within the exclusive control of the client; and the attorney may not impair, compromise, settle, surrender, or destroy them without the client’s consent. Holker v. Parker, 7 Cranch, 436; Bates v. Voorhees, 20 N.Y. 525; Whitehall Tp. v. Keller, 100 Pa. 105; Dickerson v. Hodges, 43 N.J.Eq. 45, 10 A. 111; Moulton v. Bowker, 115 Mass. 40; Crotty v. Eagle’s Adm’r (W.Va.) 13 S.E. 59; Mitchell v. Cotton, 3 Fla. 136; Weathers v. Ray, 4 Dana (Ky.) 474; Peters v. Lawson, 66 Tex. 336, 17 S.W. 734; Repp v. Wiles (Ind.App.) 29 N.E. 441; Martin v. Insurance Co. (Iowa) 52 N.W. 534; Herriman v. Shomon, 24 Kan. 387; Stoll v. Sheldon, 13 Neb. 207, 13 N.W. 201. But all the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action, or subject-matter of the suit to hearing, trial, determination, judgment, and execution, are within the exclusive control of the attorney. “All acts, in and .out of court, necessary or incidental to the prosecution or management of the suit, and which affect the remedy only, and not the cause of action,” are to be performed by the attorney. Moulton v. Bowker, supra; State v. Hawkins, 28 Mo. 366; Cheever v. Mirrick, 2 N.H. 376; Anon., 1 Wend. 109; Webb v. Dill, 18 Abb.Prac.N.Y. 264; Hughes v. Hollingsworth, 1 Murph.(N.C.) 146; Thompson v. Pershing, 86 Ind. 304; Wilson v. Spring, 64 Ill. 16; Smith v. Mulliken, 2 Minn. 319 (Gil. 273); Bank
The rule now under consideration has been followed by the courts of the Pacific states, and the supreme court of California has declared the rule in the following language : “A party to an action may appear in his own proper person or by attorney, but he cannot do both. If he appears by attorney, he must be heard through him; and it is indispensable to the decorum of the court and the due and orderly conduct of a cause that such attorneys shall have the management and control of the action, and his acts go unquestioned by any one except the party he represents. So long as he remains the attorney of record, the court cannot recognize any other as having the management of the case. If the party, for any cause, becomes dissatisfied with his attorney, the law points, out a remedy. He may move the court for leave to change his attorney. Until that has been done, the client cannot assume control of the case. While there is an attorney of record, no stipulation as to the conduct or disposal of the action should be entertained by the court, unless the same is signed or assented to by such attorneys. Such a rule is not only indispensable to the orderly conduct of the cause, but is likewise a safeguard to the client against the intrigues of his adversary. Moreover (without being understood as making any reference to the present case), it is proper to add that to entirely ignore the attorney of record, and enter, without his consent, into a secret negotiation with his client touching the management of his case, is unbecoming the dignity of the profession, and is destructive of that courtesy which is due from one member to another.” Commissioners v. Younger, 29 Cal. 147.
The doctrine here laid down has been repeatedly reaffirmed by the supreme court of that state. The rule now under consideration has also received the weight of legislative sanction. The statutes of Oregon provide “that where a party appears by attorney, the written proceed
A stipulation extending the time to answer is certainly one of the proceedings in or incident to the progress of a cause pending in court; and, as Bonnifield was represented by attorneys when the stipulation was made, his action cannot be recognized by the court. Additional force is given to the importance of this rule when it is considered that Bonnifield has a coplaintiff. The action on the part of the plaintiffs is joint, and, upon the cause of action set out in the complaint, both must recover, or neither. The right to a default on the part of the plaintiffs was a vested one on the 24th day of December, 1895; and on that day one plaintiff refuses to waive the right, and the other stipulates to do so. Who is to have his way? This dilemma exemplifies in a striking manner the inextricable confusion into which judicial proceedings would be thrown if clients, and not their attorneys, were permitted to control and manage causes in court. The stipulation, therefore, must be held for naught.
Upon the main question, the court is not satisfied, from the showing presented, that there is such mistake, inadvertence, surprise, or excusable neglect as will justify the vacation of this default. It appears from the affidavits submitted on the part of the defendant that, although the defendant’s attorneys had been under the impression that they had 60 days to answer, they did learn from their office docket on the morning of the 23d of December, 1895, that the time to answer expired that day. After learning this, they could not have labored under any mistake, inadvertence, or surprise concerning the time to answer. The only step taken that day to guard against the default was a call at the office of the plaintiffs’ attorneys at 10 o’clock that forenoon, and they were not found. About 10 o’clock the next morning, and after the right to a default had accrued, the affiant met Mr. Johnson on the street, with his hand baggage, going to the Juneau wharf, apparently on his way to take the regular mail steamer, which was then at Douglas Island, bound thence for Sitka. Here a conversation took place concerning an extension
It further appears from the showing presented in behalf of the defendant that he had fully stated the facts in the case to his attorneys, and upon such statement they had advised him that he had a good and substantial defense on the merits. Attorneys for the defendant were, then, in the position, on the 23d day of December, to prepare, and, in the absence of their client, verify, and serve, an answer. That counsel were engaged in their office, or did not have an opportunity to see the attorneys for the plaintiff, is not a sufficient excuse. Neither can any reliance which defendant’s attorneys may have placed in any knowledge of opposing counsel as to defendant’s intention to answer be considered. Defendant’s attorneys may have been, and doubtless were, disappointed that their request for an extension was refused; and, under the amenities and courtesies which are usually exchanged among the gentlemen of the bar, it would seem that the request might have been granted. But the question for the court to determine is one of law, and not of professional ethics; and, on the showing made by the defendant, the case is not one of such mistake, inadvertence, surprise, or excusable neglect as the law contemplates. Butler v. Morse (N.H.) 23 A. 90; Craig v. Wroth, 47 Md. 281; Skinner v. Terry, 107 N.C. 103, 12 S.E. 118; Landa v. McGehee (Tex.Sup.) 19 S.W. 516; Railroad Co. v. Flinn (Ind.App.) 28 N.
It follows from these views that the motion to vacate the default must be denied, and the plaintiffs will have judgment in accordance with the demand of the summons and complaint.