Haverty v. Haverty

35 Kan. 438 | Kan. | 1886

The opinion of the court was delivered by

Horton, C. J.:

A preliminary question is presented in the motion filed by the defendant to dismiss this case, upon the ground that the petition in error was not filed within’ six months after the rendition of the judgment of divorce obtained by Alice Haverty against John V. Haverty. (Laws of 1881, ch. 126, § 1.) It appears from the record that the divorce was granted June 28, 1883. This action to vacate that judgment for fraud was commenced December 21, 1883, and the judgment rendered therein on June 25,1884. The petition in error was filed on May 4, 1885—less than one year after the rendition of the judgment sought to be reviewed. This is not k proceeding to modify or reverse, by any order or judgment of this court, the decree of divorce, but the proceeding is one brought here to reverse the judgment of June 25. If that judgment, however, be vacated upon the ground that the decision of the trial court is not supported by the evidence, it will have the ultimate effect of setting aside the divorce. Section 1, of said chapter 126, provides, among other things:

“No proceeding for reversing or vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgmént or decree, it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy: Provided, Such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceedings in error be given in open court and noted on the journal of the court, within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree.”

' cured l>yp10 fraud; review. This action for vacating the decree divorcing the parties was commenced within six months after the rendition of that decree. No proceedings, in error were ever brought to the supreme court for reversing or . x ® vacating the decree of divorce, and no such petition in error is now pending. Therefore the motion to dismiss must be overruled. (Laws of 1881, ch. 126, §2; Civil Code, §§ 568-575.)

2' áíeñ™egooad An attorney owes to his client-not only all the industry and application of which he is capable, but also, unshaken fidelity. He must be loyal in act and spirit to his client’s interests. His loyalty should be unquestioned, above suspicion, and beyond reproach. An attorney not guilty of misconduct or fraud- will be protected, when he acts to the best of his skill and knowledge, and of course is not answerable for every error or mistake. He is legally responsible to bis client only for the want of ordinary care and ordinary skill; but he must conduct himself with honor and integrity. ' While the relation of attorney and client continues, the courts will carefully and zealously scrutinize the dealings and contracts between them, and guard the client’s rights againsfevery attempt by the attorney to secure an advantage to himself at the expense of the client. The client will also be relieved from any undue consequences resulting from the dealings between the attorney and himself, whenever the good,faith of the contract does not clearly appear. An attorney, therefore, when acting for his client, is bound to the most scrupulous good faith. If he corruptly sells out his client’s interest to the other side, a judgment thus obtained will be set aside, if proper proceedings are instituted. An attorney, as an officer of the court, holds a position with many privileges, and it is the solemn duty of the court to supervise the conduct of its officers and to discountenance every malpractice and abuse. The conduct of an attorney, when brought before the court for inquiry and consideration, ought to be scrutinized with the same exacting and rigid impartiality as if the question were between mere strangers to the bar. Perhaps every act should be more scrupulously weighed.

With this statement of recognized principles, we proceed to an examination of the evidence produced upon the trial. We think this evidence shows that the attorney of John V. Haverty entered into arrangements with the attorney of Alice Haverty about the time of the trial of her divorce case of such a character as to interfere with his exclusive devotion to the trust confided to him by his client. If Alice Haverty, through her attorney, prior to the trial of the divorce case, was guilty of so influencing the attorney of John V. Haverty as to obtain an undue and an unfair advantage, and thereon the judgment was thus obtained, such judgment ought to be annulled. As was said by Mr. Justice Miller, in United States v. Throckmorton, 98 U. S. 61:

“Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently and without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client’s interests to the other side—these and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree and open the case for a new and fair hearing.” (See also Laithe v. McDonald, 7 Kas. 254:)

If we rely upon the evidence of the attorney of Alice Haverty, it appears that $100 was paid to the attorney of her husband upon the agreement that she should take judgment in her favor and that the attorney would make no defense in the case for the husband, who was absent. This evidence is also supported by the clerk of the court, who testified that the attorney of Mr. Haverty “ agreed with the attorney for Alice Haverty that if he would pay him $100, he would make no objection to his taking a decree.” This clearly brings the case within the rule that “where the attorney regularly employed corruptly sells out his client’s interests to the other side, the judgment will be set aside.” If, however’, we look to the attorney of Mr. Haverty for an explanation of the evidence of Col. Burris concerning the payment of the $100, we find this payment was made for the direct benefit of such attorney. It was applied to his own fees in the divorce case, to a livery bill in his hands for collection, and to a note on which he was surety. Haverty never received any part of the $100. His attorney made no application for a continuance, and although present in the court at the trial, did not cross-examine either of the witnesses. Perhaps if he had made a searching cross-examination he might have succeeded in defeating the divorce, although his client was absent. With his consent, the decree of divorce recites that $100 was paid by Alice Haverty as alimony. The attorney states that the $100 was paid in consideration of certain improvements made by Mr. Haverty upon the place owned by his wife. Considering the evidence of this attorney, his failure to cross-examine the witnesses, the judgment rendered, we cannot say that such attorney acted in good faith towards his client. After his arrangement with Col. Burris, it was his interest that Mrs. Haverty should obtain her divorce. Thereby he realized $100. That interest was such, we think, as betrayed his judgment and endangered his fidelity. He certainly acted under a clear misapprehension of his professional duty. To such conduct we cannot give the sanction of this court. The practice of attorneys would be very impure and often fraudulent, if we permitted things of this sort to be done. Upon the evidence produced, the judgment of the trial court should have been for the annulment of the decree of divorce.

The judgment of the district court will be reversed, and the cause remanded for a new trial in accordance with the views herein expressed. .

All the Justices concurring.