Branger v. Buttrick

28 Wis. 450 | Wis. | 1871

The following opinion was filed at the January term, 1871.

DixoN, C. J.

It may be the misfortune of the defendant Hill that his attorneys should have moved for a new trial at the term in April, or that, having moved, and the motion proving unsuccessful, they should not have applied to, and obtained leave from the court at that time to renew the motion, making such permission a part of the order. As the case now stands, permission to renew or make another motion not having been reserved or granted when the first motion was overruled, it is obvious there can be no relief in the form of a second motion for a new trial, or other motion or proceeding of the same nature, based upon the same grounds upon which the first motion was made. Such is the precise character of this proceeding. The defendant moves the court to reconsider the first motion on the merits, and to relieve him from the order denying the same, and for a new trial on the merits of the cause. He does this after the term at which the first motion was heard, and upon the identical grounds upon which that motion was overruled. It is not a case of mistake, inadvertence, or surprise, or excusable neglect, within the meaning of the statute, R. S., ch. 125, § 38. If it were, then no order upon motion made by the party himself, represented by counsel who are present and heard, and who may, if deemed advisable, apply for and obtain leave to renew, would be res adjudicata and binding, and so one of tbe most salutary and best settled rules of law witb respect to tbe effect of sucb orders would be abrogated and lost. Tbe statute was never intended to apply to sucb a case, and tbe granting of tbe order by tbe court below was clearly irregular and wrong, within all tbe authorities, very many of wbicb, in tbis court and elsewhere, are cited by tbe learned counsel for tbe appellant.

By the Court. — Order reversed.

On a motion for a rehearing, Mr. Hill contended that tbe record showed only a request made of Mr. Henry to procure a continuance, and showed that Messrs. Henry & Smith bad no authority whatever to appear as bis attorneys for tbe purpose of moving for a new trial. 1. Tbe authority of an attorney may be questioned on motion, and by affidavit. Harris v. Galbraith, 48 Ill., 309; Standefer v. Dowlin, Hemps., 209; King v. Oliver, 2 Wash., C. C., 328. 2. A party for whom an attorney appears in court, without authority, is not concluded by tbe acts of sucb attorney, Chritchfield v. Porter, 3 Ohio, 518; Denton v. Noyes, 6 Johns., 297; 23 Ind., 348; De Wolf v. Strader, 26 Ill., 225. 3. An attorney cannot delegate bis authority. Hitchcock v. McGehee, 7 Porter, 556; Johnson v. Cunningham, 1 Ala., 249; Cornelius v. Nash, Breese, 98; Morgan v. Roberts, 38 Ill., 65. 4. Under these circumstances, tbe respondent bad a right to move for relief from tbe order and judgment, under sec. 38, cb. 125,R. S.

Mr. Strong, for tbe appellant, contended: 1. That tbe terms of Mr. Hill’s telegram to Mr. Henry, and of bis affidavit on tbe second motion, wbicb states that be caused bis affidavit of April 5th to be mailed to Mr. Henry, “ for said Henry to take sucb action in said matter as might be necessary,” sufficiently show an employment of said Henry, and constructively of tbe law firm of Henry & Smith, to perform any act as attorneys, wbicb, in their judgment, might be proper to defeat tbe entering up of a fmai judgment. 2. That tbe second motion was not based upon the ground that the first was made without authority, or was otherwise irregular; and it is too late to take that objection for the first time in this court.

The motion for a rehearing was denied at the June term, 1871.