193 P. 448 | Or. | 1920
It appears in evidence that the. plaintiff here had commenced a divorce case in Multnomah County, which was finally decided in this court. against her, July 29, 1913, and in which the defendant acted as her attorney. During the trial of that case it was elicited that the plaintiff and her husband had contracted to buy some land from one Smalley and to take title in the name of both husband and wife. Whether by the entirety, or as tenants in common, does not appear. On the trial of the Multnomah County divorce case the defendant there disclaimed any interest in the contract and stated in substance that he had abandoned it. After the decision of that case in her favor in the Circuit Court, the plaintiff here took up the matter through the defendant as her attorney, with Smalley, who agreed to give a joint deed, as the contract called for, to whoever paid him the money. The plaintiff here paid the balance due upon the contract and took the deed, as stated. At her request the defendant then instituted in Clackamas County, where the land is situated, an action in ejectment against Mr. Crim, to recover possession of the property. She succeeded in obtaining a judgment against him in the Circuit Court for that purpose. In pursuance of that judgment the defendant here caused an execution to be issued, placing her in possession, and by authority thereof she was actually installed upon the property. This ejectment case was tried in the Circuit Court March 5 and 6, 1913. It was reversed in the Supreme Court March 24, 1914, and a mandate was issued April 23, 1914, and filed in the Circuit Court of Clackamas County June 2d.
The charge in respect to the execution is to the effect that the defendant, disregarding his duty to the plaintiff as her attorney, secretly and fraudulently induced the owner of the judgment in the ejectment case to issue execution. That document recited on its face that, after the rendition of the judgment in favor of Crim, he assigned it to his attorneys, Kim-ball and Ringo. Both of these gentlemen testify plainly and unequivocally that they issued the execution on their own account, without consulting the defendant. It seems that there were two executions issued upon this judgment, the first on July 27, 1916, which was returned July 18, 1917, unsatisfied for want of bidders at the sale. On this latter date the execution was issued upon which the sale took place. The defendant testifies that he made no requests of anyone for the execution and did not know that it had been issued until about five days before the sale. The only evidence to the contrary of this appears in the plaintiff’s rebuttal coming from Miss Iva M. Harrington, who was county clerk of Clackamas
“The best my memory serves me, it was issued at the request of Mr. Thompson, asking me to make an exact copy of the other execution that was returned the same day. # *
“Q. What is it in particular that recalls this incident to your mind?
“A. I remember just where Mr. Thompson stood, and it was — what makes me remember it, how I happen to recall it, it seemed like a peculiar circumstance to me. I can’t remember what I said to him at the time, but anyway I asked him some question, and the way he answered me made me remember what the circumstances were.”
She does not recall what was done after she had finished writing out the execution on her typewriter. She does not remember whether she gave the writ to the attorney who asked for it, or took it to the sheriff’s office. Nor does she recollect whether or not she issued another execution in the case besides the two mentioned. Quoting from her memory of the record, she says that it shows that the execution of July 27, 1916, was issued at the request of either Kimball or Eingo, but the record does not show that the last execution was issued at the request of Thompson. In answer to this rebuttal testimony, the defendant testified, denying flatly that he had anything to do with, or asked the county clerk to issue, the last execution in the case, upon which the sale was made. He says that the only execution he had anything^ to do with in the ejectment case was the one which he caused to be issued to put the plaintiff here in possession of the premises; and he says, in respect to that, that Miss Harrington was then a deputy in the county clerk’s office, was the only one there with whom he was ac
“The party in whose favor a judgment is given, which requires the payment of money, the delivery of real or personal property, or either of them, may at any time after the entry thereof have a writ of execution issued for its enforcement, as provided in this chapter. ’ ’
We come next to the heart of the charge, viz., that the defendant had money in his hands belonging to the plaintiff sufficient to pay the judgment. The testimony of the plaintiff is characterized by contradictions of her own statement and of the record of the proceedings in the cases mentioned, and by lapses of memory which discredit her as a witness. It appears in evidence that she had caused the arrest of her husband in Multnomah County for nonsupport of herself and their children. Being dissatisfied with the efforts of the district attorney to prosecute the case, she called the defendant into the case. After repeated arguments on demurrer the Circuit Court finally held that the complaint was bad and the case was dismissed. Both she and the defendant agree that all claims which he had against her for fees or costs in that matter were settled about the time she began her suit for divorce in Multnomah County. She says that Thompson brought the ejectment case for her and that she won it. She declares that she thought when she won the ejectment action she was divorced then, and that she does not think the ejectment case was appealed to the Supreme Court. She says: “I am not sure, because since I am sick I am not sure of anything.”
“Well, I promised to pay him just as I could; just pay "him along for the costs of everything.
“Q. The costs?
“A. Yes, sir; and I supposed he would get the fees from the other side when he wanted them. I guess that is what I want to say. •
“Q. He said?
“A. No. That is what I say.
“Q. What was the agreement with him? What did he say about fees?
“A. Well, I think that is just about what he said.
“Q. Can you repeat substantially the arrangement you had with him?
“A. No, sir; but I can say I was to pay the costs of everything.
“Q. What do you mean, the co.sts?
“A. Well, what the cases would cost for briefs and things he had to have.”
In respect to getting attorney’s fees from her defendant husband, the defendant in this suit testified that, when the plaintiff consulted him about commencing the first divorce suit, he told her that, if she was. successful in the suit, she perhaps would recover something from Crim to meet her attorney’s fees. He said in his testimony that the decree of the Circuit Court allowed $75 for that purpose, but as that decree was reversed nothing was collected on that
Asked to tell when her payments to the defendant started and how long they continued, the plaintiff testified: '
“Well, I could not say exactly. I know I went downtown every week — not every week, but I will say nearly. I went down nearly every week and paid him something. Sometimes he would give me a receipt, and sometimes he would not. * *
“Q. I will ask you first if you can approximate about the amount you paid during the year, or a little over a year, approximately how much you paid in an aggregate sum?
“A. Well, I don’t hardly know. I think it amounted to about four hundred dollars.
“Q. You paid him in cash?
“A. Yes, sir; because I have receipts for part of it, and he did not give me receipts for all of it.”
In passing, it may be remarked that during the trial of this case the defendant called for the receipts he had given her and they were not produced. She first declared that the'way she got the real property was through the decision of the Supreme Court in the second divorce case, and immediately afterwards she answered that she got it by the ejectment action. She was asked whether that action was appealed, and answered: “No, sir; I don’t remember it.”
She admits getting a letter from Thompson dated March 26, 1915, which is in the record, and having a statement of her account since that date. The statement which she admits receiving is dated April 2, 1914, which was after the reversal -of the ejectment case in this court. It is addressed to the plaintiff as
“You will see by the statement that I have given you credit for all sums paid by you to me, including all of the money that I expended on the four cases as necessary expense. The account shows that you paid me $47.35 more than I expended and I have given you credit for this amount.
“I have charged conservative fees for the work done, but if you can pay me or secure me for the same, I am willing to discount the' bill to considerable extent. ’ ’
The plaintiff admits receiving this letter and the account. There is another copy of an account dated March 14, 1913, prior to the final disposition of any of the litigation, which the defendant testifies he delivered in person to the plaintiff. It contains a statement of their affairs up to that time and corresponds
“It must be true that the relation of attorney and client in a case like this one does not last forever. It ends at some time, and the time that the relation terminates in any particular case will depend upon the facts and circumstances and the nature of the employment or retainer. In the absence of special circumstances, ‘the employment of an attorney continues as long as the suit or business upon which he is engaged is pending, and ordinarily comes to an end with the completion of the special task for which he was employed. At common law, the obtaining of a final judgment was such a termination of a suit as brought the relation to a close.’ ”
So, in Knowlton v. Mackenzie, 110 Cal. 183 (42 Pac. 580), the court said:
“For the purpose of prosecuting or defending an action the authority of an attorney ordinarily terminates with the entry of judgment: Kellogg v. Gilbert, 10 Johns. 220 (6 Am. Dec. 335); Weeks, Attys. at Law, § 239; except for the purpose of * * enforcing the judgment or seeking to have it set aside or reversed. ’ ’
In Harrison v. Murphey, 39 Okl. 548 (135 Pac. 1137, 49 L. R. A. (N. S.) 1059), the defendant as attorney had once represented the plaintiff in various matters that had been closed up. He drew the mortgage for the plaintiff and, when it was foreclosed, bought the land from the purchaser at foreclosure sale. The court said:
“It is not shown that the defendant could have used, or needed to use, much less abuse, any information gained or position or situation attained through the relation of client and attorney, once existing. He had no duty to perform inconsistent with the purchase; there was no defect in his former work to be*616 assailed; no outstanding title was procured; no latent defect was availed of; when his relation terminated he left his clients possessing the fee. Had they met their obligations according to their tenor, there would have been no trouble. No trouble they now have is traceable to defendant. It cannot be the law that an attorney, in the absence of fraud or an abuse of confidence in some way, is forever debarred from acquiring property, honestly and in good faith, solely because it had formerly belonged to a person who at some time in the past had been his client. ’ ’
In Tobler v. Nevitt, 45 Colo. 231 (100 Pac. 416, 132 Am. St. Rep. 142, 16 Ann. Cas. 925, note, 23 L. R. A. (N. S.) 702), it was said:
“At common law, the general rule is that the authority of an attorney to represent his client in an action ceases upon its final determination and the entry of judgment. Especially was this true as to the defendant’s attorney- — or, more accurately speaking, the attorney for the defeated party.”
In Smith v. Craft, 58 S. W. 500 (22 Ky. Law Rep. 643), it is said:
“An attorney had a right to purchase claims against the firm, as in so doing he used no information obtained as counsel, nor took unfair advantage of the Welsh Coal Company, or its general creditors.”
In Elmore v. Johnson, 143 Ill. 513 (32 N. E. 413, 36 Am. St. Rep. 401, 21 L. R. A. 366), the court lays down the rule that before the assumption of the relation of attorney and client, and after its expiration, the two deal at arm’s-length, but not so while it is in existence.
In Tancre v. Reynolds, 35 Minn. 476 (29 N. W. 171), according to the syllabus, it is ruled that—
“An attorney who contracts with his client is subject to the onus of proving that, as respects the con*617 tracts, no advantage was taken of the client’s situation. But where a previously existing relation of attorney and client has come to an end, so that the parties are dealing, each for himself, at arm’s-length, this strict rule does not apply; but to avoid the contract (otherwise unobjectionable), the client must show that it was procured by actual fraud.”
The testimony shows that, after the judgment in ejectment had been finally entered against the plaintiff here, she employed other counsel to carry on her subsequent litigation resulting in a divorce from her husband. She herself says she never saw the defendant afterwards. The plain conclusion of fact, independent of the presumption of law, is that their relation of attorney and client ended with the rendition of the final judgment in the ejectment action. The defendant explains why he bid in the property. He says in substance that the plaintiff owed him the balance of the accounts as he had stated it to her, and that he bought the property to protect his interests, for, if she suffered it to go to sale to someone else, she could assign her equity of redemption to some stranger and the defendant would be cut off from any means of securing his claim.
We have, then, an execution, as we believe the fact to be, issued, not at the request or with the knowledge of the defendant, but by the owners of the judgment, and a sale regularly advertised, at which the defendant, like anyone else, had a right to bid. There is no law compelling him to bid more than will carry the sale. It appears in evidence that a former execution upon the same judgment had been issued and returned for want of bidders. The sale, for aught that appears, was made fairly and openly, and the defendant was entitled to what benefit accrued to him on account of the sale, so fax as anything appears in this
For- the purposes of this decision it is not necessary to go into an analysis of the authorities on setting aside a sale for mere inadequacy of price. It is sufficient to say that in all of the cases cited by the plaintiff the element appears that previous to commencing the suit the moving party had tendered to the purchaser the amount of his hid and had shown circumstances of fraud and concealment on the part of the defendant, or conduct lulling the plaintiff into repose, when a duty rested upon the purchaser to notify the former client. Having shown that the relation of client and attorney once existing had come to an end, no dut3r was cast upon this defendant, so far as the present record shows, requiring him to pay
It is not apparent that the defendant violated any confidence between himself and his former client. The cases cited on that feature by the plaintiff relate to incidents where a secret advantage was taken of the client, who reposed confidence in the attorney, on the question involved. Here the action was commenced at the instance of the plaintiff, and it was a matter of public record, open to the inspection of all men. There was no private confidence involved. The judgment was the result of her own action. Of course, if the defendant had in fact money of the plaintiff in his hands sufficient to cover the amount of his bid, a tender of that sum as a prerequisite for commencing the suit would not be necessary. But the great weight of the evidence shows that this was not the situation; so that, if the plaintiff would now be let in to redeem, she must in any event herself first do equity by tendering to the defendant the amount
Reversed and Dismissed. Rehearing Denied.