In our previous opinion, we stated that “[t]he dispute here concerns only the 60 acres that the addendum deleted.”
Marilyn’s affidavit in support of her motion in the trial court to set aside the interlocutory judgment states:
“I was never served, either directly or by substitute service, with copy of the summons and complaint in the above-entitled case nor did I at any time authorize any attorney to accept service for me.
“At no time was I aware of the proceeding against me or any Decree of Foreclosure.”
In another affidavit, Marilyn asserted that she was not aware of the existence of the interlocutory judgment until June, 1983, and she stated in her brief here that she did not understand until June, 1984, that it pertained to the disputed 60 acres. The record also contains Grover’s affidavit, which states:
“I retained * * * Ledridge to represent me only. At no time was he hired to represent my wife nor did my wife hire him. * * * Ledridge never accepted service for Marilyn * * * nor was he authorized to.”
Plaintiffs submitted an affidavit of their attorney in rebuttal.
Whether the attorneys who purported to act for Marilyn were authorized to do so, or whether she ratified those acts, are questions of fact. See Choi v. Hurley,
The trial court’s order that denied Marilyn’s motion recites that the court “has heard arguments and considered memoranda of law submitted in this case” and “is fully advised.” The record also contains a transcript of the court’s response to arguments of counsel:
“Judge Wasley pretty well went into this thing when he decided it a long time ago and found that these people were all on notice.
“Now, what may or may not well be the case is that whether * * * is whether or not these people, these attorneys, actually represented Mrs. Overbay. But I think it is quite clear from everything I’ve read on this thing that, at least, she was sensibly [sic] represented by counsel. The counsel are all indicating that they represented her, so it is pretty clear to me that she was in court to her attorneys. Now, if they were operating without her authority then that’s another matter. But, I think at this point to set aside a Judgment because of the allegations that have been made here would not be well considered because some place you have to stop these kinds of proceedings and I think that was the purpose of that Judgment.
“Now, like I say, if she wasn’t represented by counsel, actually if they didn’t have the authority to represent her that’s another matter but certainly the record would indicate that she was represented by counsel all the way through. So the Motion to Set Aside the Judgment will be denied.” (Emphasis supplied.)
We interpret that statement as a finding that Marilyn was ostensibly represented by counsel throughout and that the evidence does not rebut the presumption of authority. We agree. The interlocutory judgment of foreclosure is not void as to Marilyn.
In our former opinion, we also stated that both “the original and amended complaints then set forth a metes and bounds description that described the entire 160 acres.1” The original complaint apparently did not describe the 60 acres. Our error, however, does not affect the remainder of our opinion. We modify our opinion to delete the quoted sentence and replace it with the following:
“The original and amended complaints then set forth metes and bounds descriptions. The original complaint did not,but the amended complaint did, include the 60 acre parcel, and the amended complaint, therefore, described the entire 160 acres.” (Footnote omitted.)
Motion and petitions for reconsideration granted; opinion modified and adhered to as modified.