3 S.D. 124 | S.D. | 1892
This was an action, to recover certain real estate described in the complaint. The defendant Scholtes pleaded: (1) A general denial; (2) that he was the owner in fee of the property; (3) that the same was a homestead. At the trial the court discharged the jury, and ordered judgment in favor of defendants. From this judgment the record shows that the plaintiff appeals.
After the appeal had been perfected, and the cause prepared for a hearing in this court, the respondents filed their motion to dismiss the appeal, because it was brought and is prosecuted without authority. The notice of appeal is signed by Keith & Bates and G-eorge W. Hanson, attorneys for plaintiff and appellant. The abstract and brief have the firm name of Keith & Bates, attorneys for appellant, attached to them. These facts primarily raise the presumption that these attorneys had the authority to do what has been done in the case since the rendition of the judgment in the court below. But the attorney for the respondents has filed several affidavits in support of his motion to dismiss. First is the affidavit of Dalbkermeyer, the plaintiff, against whom the judgment was’rendered, in which he swears “that neither Keith & Bates, nor either of them, are, or have ever been, my attorneys therein, or authorized by me to act in said action in any manner; that I am informed that an attempt has been made to appeal said action from the circuit court of Minnehaha county, South Dakota, to the supreme court of the state; that I have never, either directly or indirectly, authorized said appeal to be taken, and any such
■The facts detailed in the affidavits show without doubt that George W. Hanson was originally employed by Dalbkermeyer to prosecute the case in the court below, and that afterwards Messrs. Keith & Bates were associated with him in the trial of the cause. But grievous doubts exist as to the authority to take and prosecute this appeal. The authority of an attorney to appear in any proceedings of a court is not questioned by the court. The right of an interested person to do so is clear. In this case the appellant, by his sworn statements, says that neither Messrs. Keith & Bates, nor any other attorney, was, directly or indirectly, authorized to take or perfect this appeal, and all proceeding for that purpose are without his consent, and against his wish and desire. ■ To controvert the affidavit is that of H. H. Keith. Says he was employed by George W. Hanson, the attorney of Dalbkermeyer, to assist in the prosecution of the case in the lower court. Hanson’s authority, if any existed, to employ counsel, could only extend to the obtaining and enforcing of it. Unless, therefore, we can find some subsequent employment of either of the attorneys acting in behalf of the appellant in the appeal, he or they must have been acting without authority. Mr. Keith states that he was employed-to take whatever steps were necessary to appeal the case to the supreme court. The employment or understanding was between