194 Ky. 435 | Ky. Ct. App. | 1922
Opinion op the Court by
Affirming.
This action was instituted in the Harlan circuit court by appellee and plaintiff below, Mary Helen Coal Corporation, against the appellants and defendants below, King Construction Company and A. H. Howard, sheriff of Harlan county, to enjoin the collection of a judgment rendered by that court on August 13, 1919, in favor of defendant construction company against plaintiff herein for the sum of $850.00 interest and cost, and to obtain a new trial of the action in which the judgment was rendered. The court granted the relief prayed for and complaining of that judgment defendants have appealed.
The facts relating to the ohtention of the judgment sought to he enjoined are that on November 15, 1917, the
Immediately upon the filing -of that answer and cross petition, -one of the plaintiffs in the case, W. F. Hal-1, purporting to act as attorney for the -coal -corporation, entered its appearance to the cross petition. The order of the court recites “ and the cross defendant, Mary Helen Coal Corporation, by its counsel W. F. Hall thereupon entered the appearance of the said cross defendant to this action and waived service of summons on said
The jury returned a verdict in favor of plaintiffs therein against the construction company for $600.00 and in favor of the latter company against the coal corporation for $850.00, upon which judgment was rendered, and which is the same that is sought to be set aside and its collection enjoined in this proceeding. Various authorized grounds for the relief sought are alleged and relied on, but we deem it necessary to consider only the one question, the authority of Hall to enter the appearance of the coal corporation (plaintiff herein) to the cross petition of the construction company in the action of Hall and Cawood against it.
The rule appears to be quite universal, if not entirely so, that employed counsel has the authority to enter the appearance of his client to any pleading or proceeding that may be filed or taken in the case and to waive the prescribed formalities of service of process, and it is likewise the rule that the authority of the attorney to make suieh entry will be presumed and the burden is upon the alleged client to disprove it. 6 Corpus Juris, 631 and 644; 2 R. C. L. 980; Duff v. Combs, 132 Ky. 710; Bourbon Stock Yards v. Louisville, 23 Ky. L. R. 420, and L. & N. Ry. Co. v. Newsome, 13 Ky. L. R. 174. But the rule furthermore seems to be that the employment of an attorney under a contract of general retainer only will not empower or authorize him to enter the appearance of his client to any particular suit or proceeding. Such authority issues from an actual or presumed employment of the attorney in the particular suit or matter in which the appearance is entered. The evidence in this case shows, at most, only a general retainer of W. F. Hall as counsel and attorney for the coal corporation. There is no pretense of any specific employment of him to represent it in the litigation in which the judgment attacked was rendered. But, be this as it may, the rule is universal
The general doctrine is thus stated in 21 R. C. L. 825: 11 The employe is duty bound not to act in antagonism or opposition to the interests of the employer. Everyone— whether designated agent, trustee, servant or what not— who is under contract or other legal obligation to represent or act for another in any particular business or line of business or for any valuable purpose must be loyal and faithful to the interest of such other in respect to such business or purpose. He cannot lawfully serve or acquire any private interest of his own in opposition to it. This is a rule of common sense and honesty as well as of law. ’ ’ And as applied to the relationship- of attorney and client, vol. 2 of the same work on page 973 says: “The well established rule of law that, unless with the free and intelligent consent of his principal, given after full knowledge of all the facts- and circumstances, an agent can not in the same transaction act both for his principal and for the adverse party, applies to the relation of attorney and client, with some exceptions, and an attorney at law who has -once been retained, and received the confidence of a client, is thereafter disqualified from acting for any other person adversely interested in the same general matter, however slight such adverse interest may be. Nor does it matter that the intention and motive of the attorney are honest. This rule is a rigid one and designed not alone to prevent the dishonest practitioner from fraudulent conduct, but as well to preclude the honest practitioner from putting himself in a position where he may be required to choose between conflicting duties, or be led to an attempt to reconcile conflicting interests, rather than to enforce to their full extent the rights of the interests which he should alone represent.”
This court, in the case of Ball v. Poor, 81 Ky. 26, adopted and applied the principles of the quoted texts. In that case the defendant executed written power to plaintiff’s attorney authorizing the latter to enter her
If the attorney for a plaintiff may not enter the appearance of - a defendant to any pleading in the cause, because against public policy, a fortiori, would it be against public policy for one who was both plaintiff and attorney to enter such appearance. In this case W. F. Hall was interested in collecting from the construction company whatever judgment he and Cawood recovered against it. It was a non-resident corporation and an attachment was obtained at the beginning of the suit. If it obtained a judgment against the coal corporation there would then be still further assets which might be subjected to the payment of that judgment. His interest, therefore, was directly in conflict with that of the coal corporation whose appearance he professed to enter to the cross petition of the construction company, and his act in so doing was against public policy and void, which fact was necessarily known to the construction company
But it is insisted that Hall at the time he attempted to act on behalf of the coal corporation in entering its appearance was its designated agent in this state as required by section 571 of the statutes, and that he therefore had the right and authority to waive the service of summons and enter plaintiff’s appearance. Independently of any conflict of interest to which we have alluded, we doubt this'proposition seriously. But, whether without such antagonistic interest, an agent so designated may enter the appearance of his principal in a legal proceeding we need not determine, since it is patent that the conflicting and antagonistic interest manifested here destroyed and nullified any such authority if it did otherwise exist.
It is again insisted that plaintiff, coal corporation, on July 15, 1919, was notified by Hall concerning his action in entering its appearance to the cross petition of the construction company and that it ratified his act by failing to appear and make defense. But we find ourselves unable to agree with this contention. In the first place the letter of Hall in which such notification, if any, is contained neither expressly nor impliedly stated that he had entered such appearance, nor is there anything in the letter remotely intimating that he had done so. The letter in question was one in which the firm of Hall and Jones withdrew “from further representing Mary Helen Coal Corporation in any matter of business, in the courts or otherwise,” and in it it was stated that “Mary Helen Coal Corporation has two suits that need attention,” one of which, as therein named, was the case of Hall and Cawood v. King Construction Company. At that time no process had ever issued on the cross petition, nor did the coal corporation have any notice that it was even a.party to that suit, though its appearance thereto had been entered by Hall more than six months, who, in the mean tirpe, made no effort to take any steps toward defending the interests of the client for whom he had waived the issuing and service of process. The coal corporation might very properly have concluded from the letter of Hall that it would in due time be' served with process after which it could appear and defend, and it is quite apparent that the full extent of the attorney’s duty was to apprise the coal corporation of the fact that he had at least attempted to enter its appearance in the suit in
That a court of equity may relieve against a judgment obtained under the circumstances here involved is thoroughly settled. 3 Cyc. 532; 2 R. C. L., supra, 984-985; note to the case of Bunton v. Lyford, 75 Am. Decisions on pages 146-147, and note to the case of Little Rock, etc. Railroad Co. v. Wells, 54 Am. St. Rep., on pages 246-247.
What has been said dispenses with the necessity of determining the merits of the claims of the construction company for which the judgment was rendered in its favor against the coal corporation. But, we deem it not improper to say that, according to the showing made in the present record, no liability is proven against the coal corporation for either of the items composing the judgment against it. As between it and its contractor, the construction -company, it was under no obligation to compensate that company for losses-growing’ out of its negligence, and there is nothing in the contract under which it was employed obligating the coal corporation to do so. Neither is there anything in the contract, nor in any testimony in the case, which would include in the cost of construction the attorney’s fee sought to be recovered, and this conclusion is reached independently of the contract of April 26, 1918, by the terms of which “the balance due for work and all other considerations relating to the contract” were settled and adjusted.
Finding no error in the judgment, it is accordingly affirmed.