Butler v. Morse, 23 A. 90

Butler v. Morse

23 A. 90 | N.H. | 1891

The reported facts do not make a case such as entitles the petitioner to the relief which he asks. Relief against judgments of record upon the ground of accident or mistake is confined to those cases in which negligence is not properly imputable to the applicant or his agents. Wingate v. Haywood, 40 N.H. 437; Bergeron v. Dartmouth Savings Bank,62 N.H. 655, and authorities cited. This is not such a case. The only accident or mistake relied upon for vacating the decree and judgment of foreclosure is the neglect of the petitioner's counsel in that suit to file an answer setting up the defence of partial failure of consideration in the mortgage debt. Whether the failure to do this occasioned any injustice to the petitioner it is unnecessary to determine, because the neglect of the attorney must be regarded as the neglect of the petitioner himself. Bergeron v. Bank, supra. When a party selects an attorney of the court to conduct his cause in his stead and place, he confers upon the attorney authority to take such action in its prosecution or defence as he may decide to be *431 legal, proper, and necessary in the management of the cause; his acts are, in the absence of fraud, the acts of his client; and the rule that a party cannot in equity find relief from the consequences of his own negligence is equally applicable where the neglect is that of his attorney employed in the management of the case. Alton v. Gilmanton, 2 N.H. 520; Bryant's Case,24 N.H. 153; De Louis v. Meck, 2 G. Gr. 55 — S.C., 50 Am. Dec. 491; Lawson v. Bettison, 12 Ark. 401; Chambers v. Hodges, 23 Tex. 104; Sampson v. Ohleyer, 22 Cal. 200; Gifford v. Thorn, 9 N. J. Eq. 702, 722; Shricker v. Field, 9 Iowa 366; Chester v. Apperson, 4 Heisk. 639; Winchester v. Grosvenor, 48 Ill. 517; Weeks Att. at Law, ss. 217, 221, 222; 1 Wait Act. Def. 434; — see, also, Grout v. Cole, 57 N.H. 548.

The fact that the petitioner first learned that the bill had been taken as confessed and a decree of foreclosure entered up when the officer served the writ of possession is immaterial as against the adverse party who is not in fault, and who has at least equal equity, and, in addition to that, the legal advantage. The petitioner's attorney was bound to take notice of the orders and decrees made in the case, and must also be deemed to have had knowledge of them, for, like other officers of the court, attorneys are, by a legal fiction, always deemed to be, during term, present in court (People v. Nevins, 1 Hill, N.Y., 154); and notice to the attorney, whether actual or implied, is considered notice to the client, and binds him, when the notice is in the course of the transaction in which the attorney is acting for him. Allen v. McCalla, 25 Iowa 464 — S.C., 96 Am. Dec. 56; Crouse v. Morse, 49 Iowa 389; Bierce v. Hotel Co., 31 Cal. 160; Haven v. Snow, 14 Pick. 28, 33; Williams v. Tatnall, 29 Ill. 553; Pepper v. George,51 Ala. 190; Weeks Att. at Law, s. 237.

If the petitioner is entitled to any redress, it is against the attorney.

Petition dismissed.

SMITH, J., did not sit: the others concurred.