137 N.W. 359 | S.D. | 1912
Appeal from circuit court of Minnehaha county. The plaintiff, Rice, as assignee of three judgments, rendered in the district court of Nance county, Neb., commenced an action against Bennett, defendant and respondent, to recover sums aggregating $2,180.11, with interest from February 26, 1906, the date of the judgments in the Nebraska court. The answer was a general denial, and further alleged that defendant had never been served with process in the actions in Nance county, and had never voluntarily appeared therein. Trial April 25, 1911, before a jury. At the conclusion of all the evidence, each party moved for direction of a verdict. Plaintiff’s motion was denied, and the motion of defendant sustained. Final judgment dismissing the complaint on its merits was entered May 3, 1911. This ap
. Respondent’s counsel discusses in his brief certain propositions relating to the procedure adopted in settlement of the statement of the case upon motion for a new trial; but, in view of the conclusion reached upon the merits, it is unnecessary to. consider the procedure. The motion for a new trial specified as grounds: first, insufficiency of the evidence to justify the verdict; second, that the verdict was against law; third, errors of law occurring at the tidal and excepted to by the plaintiff. Appellant contends that the uncontradicted evidence establishes conclusively that C. E. Spear had authority to appear and did appear as attorney for defendant, I. I. Bennett, in the district court of Nance county, Neb.; that said court thereby acquired jurisdiction of the person of defendant and of the subject-matter of the actions; that the evidence is uncontradicted and conclusive that plaintiff, in the actions pending in the district court of Nance county, believed and relied upon the fact that said Spear had authority to appear for defendant therein; that the plaintiff in this action, Hiram Rice, believed said Spear had authority to appear as attorney for defendant in said actions, and, relying upon such appearance, has acquired for a valuable consideration the three judgments so rendered against defendant; and that defendant in this action should be estopped to assert that Spear had no such authority. The record discloses, that the actions in the Nebraska court were upon certain promissory notes purporting to have been executed by the defendant, Bennett, upon which the plaintiff Rice became accommodation indorser; that Rice was not made a party to said actions, but after entry of the judgments all three were assigned to him.
The main controversy upon this appeal is as to the authority of Spear, an attorney residing at Albion in Boone county, to-waive issuance and service of summons in the actions and entei the voluntary appearance of defendant, Bennett. We shall consider these assignments- as they are discussed in appellant’s brief. The vital question is whether the district court of Nance county,. Neb., acquired jurisdiction by the voluntary appearance of defendant, Bennett. It is not claimed there was any service or at
In response to this letter, Spear on August 30, 1905, wrote Bennett at Omaha, Neb., a letter, which was received by him, as follows: “Dear Sir: I am in receipt of your favor of Aug. 29th, relative to certain actions now pending in Fullerton. I will enter an appearance in these cases as y-o-ur attorney, and will take such steps as I consider for your best interests. As soon as I have examined the papers, I will write you again as to what course I think you had better pursue. Very truly yours, C. E-Spear.” In response to this letter, Bennett wrote Spear, under date of September 9, 1905, as follows: “Dear Sir: Your letter to hand and note that you will advise me in a few days what course you will pursue in the cases at Fullerton. I am very anxious to hear from you at the earliest possible date.”
Under date of September 14, 1905, Spear wrote Bennett at Omaha, Neb., as follows: “Replying to yours of the 9th, will
On September 27, 1905, Spear wrote to Bennett at Omaha, Neb., as follows: “Dear Sir: I shall be in Omaha all of next Thursday, Oct. 5, and would be pleased to know where I can meet you at that time. Please let me hear from you at your earliest convenience.”
In response to this letter, Bennett wrote Spear on October 2, 1905, as f-ollpws: “Dear Sir: If nothing interferes I will meet you at the Paxton Hotel, Thursday noon. (12, 12-15).”
Spear left for Omaha without receiving this letter, and on October 6, 1905, wrote Bennett: “Dear Sir: I have just returned from Omaha, where I have been the past three days. I left there the evening of the 3d and I find your letter did not reach here until the 4th. I regret that I did not receive your favor before I left. I am perfectly in the dark as to what you desire done. I must have some understanding- with you soon.”
On October 13, 1905, Spear wrote Bennett, at Omaha, Neb.: “Dear Sir: I have received no answer to my last letter and am still at a loss as to what to do in your Nance county cases. I do not care to stay in these cases unless I am better informed as to what yo-ur idea in regard to a defense. I have spoken to Mr. Vail regarding the matter but about all that I can get from him is that I should appear for you. I-have not received a copy of the -files, and for that reason know but very little about the issues raised or the condition of the cases. Please let me hear from
On the 8th day of November, 1905, Spear wrote Bennett as follows: “Dear Sir: It seems that we are getting no nearer to an understanding relative to your suits now pending- in Nance county. It is impossible for me to be of any advantage to you or to proceed any further until I do ascertain what you desire. Upon receipt of this, please write me on what date I can meet you in ■Omaha. Of course, I do not know that I could be there on the day that would be convenient for you, but if not I will notify you. Unless I hear from you within a short time, I shall withdraw from these cases for the reason I do .not care to be responsible as an attorney, in a case where it is impossible for me to do anything. Hoping to hear from- you in the near future, I remain.” Bennett testified that he did not remember having received this letter.
On December 19, 1905, Spear wrote to Bennett at Sioux Falls a letter as follows, which was received by Bennett: “Dear Sir: I regret that I have not heard from you definitely regarding the cases against you at Fullerton. As instructed I entered your ■appearance but have received no information from you directly as to what you desire done. I have been informed indirectly that you do not wish to oppose the claims of the banks and the other party who holds notes indorsed by Mr. Rice. In other words you would not care to stand in the way of the plaintiffs in this action to prevent them enforcing their attachments. I inclose herewith authority for you to sign, giving me the power to- appear and file an answer of admission on your part. If this is what you want, sign -this paper and return to me immediately. If you do not want me to do this, write me at one before any advantage is taken by reason of my appearance in this case. It will probably be necessary to take your deposition before this matter terminates, and if so, I will meet you at Sioux Falls for that purpose. Of course Mr. Rice will be compelled to stand the ex-pense of this deposition. Do not fail to write me immediately upon receipt of this letter as I am now in a very awkward position regarding these cases. I have no other purpose in appearing
Certain other letters passed between them which add nothing material to the facts above disclosed.
It is appellant’s contention that upon the facts disclosed by the record defendant is estopped to dispute the jurisdiction of the Nebraska court and is further estopped from denying the authority of Spear to waive service of process and submit his client to the jurisdiction of the Nebraska court.
It is respondent’s contention that a defendant in an action on a foreign judgment may plead want of jurisdiction in any case, and that appellant’s authorities relate to actions on domestic judgments which may not be attacked collaterally, but only directly, in . the courts which rendered them, citing, Black on Judgments, § 275, where it is said: “The preceding sections show the immense preponderance of authority to be in favor of the rule that a judgment of a superior court can never be impeached collaterally for want of jurisdiction not appearing on its face. This rule, as we stated, is limited to domestic judgments, for, in the case of a judgment coming from a sister state or a foreign country, it is agreed on all hands that want of jurisdiction may always be shown against it. But this is a special and peculiar question and must be carefully separated from the point now under consideration. That being done, we still find a certain number of cases squarely •denying the general accepted rule. It is held in Texas that the doctrine of the absolute verity of a record does not apply when the want of jurisdiction is made a question. ‘This may always be set up when a judgment is sought to be enforced or any benefit is claimed under it, and this is not inconsistent with the principle which ordinarily forbids the impeachment or contradiction of a record.’” Fitzhugh v. Custer, 4 Tex. 391, 51 Am. Dec. 728; Thouvenin v. Rodrigues, 24 Tex. 468; Smith v. Tupper, 4 Smedes & M. (Miss.) 261, 43 Am. Dec. 483; Brown v. Balde, 3 Lans. (N. Y.) 283. So in New York: “The want of jurisdiction -in a court rendering a judgment may be shown collaterally whenever any-benefit or protection is sought under the judgment.” Putnam v. Man, 3 Wend. (N. Y.) 202, 20 Am. Dec. 686.
We shall consider, first, the contention of respondent that facts constituting an estoppel against the defense that the foreign court was without jurisdiction may not be proved by plaintiff in this action, because such facts are not pleaded in the complaint. This contention is founded upon a misconception of the manner in which the issue arises in this action. The allegations of the complaint are sufficient .to constitute a cause of action on judgments rendered in a court of record of the state of Nebraska. The answer sufficiently sets forth that the court whi.ch purported to
It is settled law that recitals in foreign judgments do not estop a defendant from pleading want of jurisdiction. But fur
It is well settled that an attorney cannot waive substantial rights of his client without the latter’s express consent. Howe v. Lawrence, 22 N. J. Law, 99; Dickerson v. Hodges, 43 N. J. Eq. 45, 10 Atl. hi. Under this rule, one who is employed merely ■as an attorney at law has no> authority to waive issuance and service of jurisdictional process. In Masterton & Hoyt v. LeClaire, 4 Minn. 163 (Gil. 108, a leading case many times cited as an authority, the court says: “It is no part of the duty of an attorney, nor is it within his power as an attorney, to admit service for his client of an original process by which the court obtains jurisdiction for the first time of his person. To exercise such a power and bind -his client, he would require á speciál authority, and in the performance of the' duty he would act as an attorney in fact, and not as ah attorney of the court. The relation existing between the attorney and the defendant' for' whom he admitted the service would be more that of principal and agent than attorney and client. The latter" relation only begins when the court has obtained-jurisdiction'of the patty to the'suit, and his appearance therein by attorney." "To perfect'the proof of service of the
We find no error in the record, and the judgment and- order of the trial court are affirmed.