136 N.W. 247 | N.D. | 1912
This appeal is from an order of the district court denying plaintiff’s application to vacate a judgment against him entered in favor of defendant, Hartzell. The application made and its review on this appeal is based on the following record :
In the early part of 1906 plaintiff employed one, S. G. Cady, then a practising attorney at law resident at Oakes, North Dakota, to institute an action against defendant, Hartzell, and one Day, to quiet title to land described as the southeast quarter of section 2, township 130 N. of range 59 W. in Dickey county. Plaintiff was then, and at all times since has been, and now is, a resident of Minnesota. He employed Cady by mail. Cady and plaintiff were strangers and this their only business transaction. Cady began this entitled action by issuing a summons in due form, accompanied by the statutory form of complaint to quiet title, and procured a judgment to be entered on July 18, 1906, on findings of fact and conclusions of law dated June 26, 1906, quieting title in plaintiff. The summons was attempted to be served by publication. Affidavit of publication of summons and affidavit of mailing was filed, but the complaint in the action was not verified until June 27, 1906, after the date of the findings, and the verified complaint was not filed in the office- of the clerk of the district court until the 18th day of July, 1906, the date of entry of judgment. Soon thereafter-, upon Cady advising plaintiff that judgment was entered, plaintiff paid him the costs incurred in the proceedings, and his fees, and ended his employment. Nearly three years later, upon motion supported by affidavits and accompanied by answer, defendant, Hartzell, brought on for hearing on May 8, 1909, before the district court, an application to vacate its judgment entered in 1906, with leave to serve and file his answer, which moving papers were served upon Cady as the attorney of record in the action. No one appeared on the hearing to oppose the application, and an.order was entered vacating for want of jurisdiction the former judgment, and ordering the answer and cross complaint of defendant, Hartzell, to stand “without further service of the same upon the plaintiff, and that'the issues be tried and determined”
On April 28th following, service was had upon the attorneys for defendant, Hartzell, of an application to vacate said judgment, supported by affidavits, plaintiff appearing by his present counsel. These affidavits upon which hearing to vacate was had May 11, 1910, disclose conclusively that this plaintiff has had no- actual knowledge whatever of any of the proceedings concerning the vacation of the judgment rendered in 1906, and the subsequent trial of the action as between him and Hartzell. That Cady’s employment was terminated in July, 1906, and that all acts done by him thereafter were wholly unauthorized and without plaintiff’s knowledge. That he has always been a nonresident of this state. That he has, pending these proceedings, conveyed this land by a deed containing covenants of general warranty. That plaintiff, for the first time, learned of the proceedings had subsequent to the vacation of the judgment of 1906 on the last day of February, 1910, from his purchaser, one Brennan, who had on February 18th received information of the entry of the judgment in favor of Hartzell. That plaintiff forthwith employed counsel and took steps to learn the facts concerning said matter, and in April following noticed said application for vacation of the judgment rendered against him. Accompanying plaintiff’s affidavit is that of attorney Youker, explaining the connection of his firm with the record to have been brought about under
We will here state that we believe and find that all parties andi attorneys in this action have acted in good faith, with no intent to defraud or to, by sharp practice, wrongfully prevail in this action. Mr. Cady evidently procured the entry of the judgment in 1906 under the honest belief of its validity; and plaintiff, relying on the judgment, in ignorance of its jurisdictional defects, believed title in him to be quieted by said judgment. Plaintiff was a nonresident of the state. The attorneys for defendant, Hartzell, served upon attorney Cady the moving papers to vacate said judgment, as they had a right to do. Attorney Youker’s affidavit established the sickness of Cady and his incapacity to care for the litigation, and accounts for Youker & Perry’s appearance unauthorized by plaintiff. Mr. Cady’s sickness satisfactorily explains the failure of plaintiff to receive from him notice of such subsequent proceedings, and Youker’s ignorance of plaintiff’s whereabouts and probable reliance upon Cady to procure plaintiff to be present under the supposition that plaintiff was a resident in that vicinity, likewise exonerates his firm from criticism. Under the circumstances, although the acts and appearances made in good faith, but nevertheless unauthorized by these attorneys appearing for plaintiff, while misleading defendant and counsel, also acting in good faith, the proof is conclusive that plaintiff is in no wise at fault, has not been guilty of laches before or since the entry of this last judgment; and also that it is his property that will respond to and virtually be confiscated without trial by this judgment.
■ The law governing our decision is plain. Cády was employed as plaintiff’s attorney to institute and presumably prosecute to a successful finish the action originally brought. It is equally certain that what he did amounted to but the issuance of a summons and complaint, and the filing of the same with the clerk of the court. The purported judgment was not merely voidable, but wholly void, for want of jurisdiction apparent from the noncompliance with statutory jurisdictional requirements. Prior to the entry of judgment therein, the action was in law deemed discontinued under § 6884, Rev. Codes 1905, as more than sixty days had then elapsed after the filing of the affidavit for publication without personal service of the summons or the first publica
But no issue is here presented other than the effect of the unauthorized appearance of these purported attorneys for plaintiff. In this respect the case stands as though no appearance had been entered, notwithstanding the acts of Youker & Perry in attempting to represent Mr. Cady, who in turn was supposed to he plaintiff’s attorney. “The relation of attorney and client is a relation of agency, and in its general features is governed by the same rules which apply to other agencies.” Mechem, Agency, § 808; 4 Cyc. 932; Gibson v. Nelson, 31 L.R.A.(N. S.) 523, and note (111 Minn. 183, 137 Am. St. Rep. 549, 126 N. W. 731). “Wherever ... a regularly admitted attorney appears for a party in a cause the presumption is that such appearance is authorized.” Mechem, Agency, § 809; note to Williams v. Johnson, 21 L.R.A. 848; 2 Enc. Pl. & Pr. 679; Vilas v. Butler, 9 L.R.A. 844, and note; Bacon v. Mitchell, 4 L.R.A.(N.S.) 244, and note (14 N. D. 454, 106 N. W. 129). But “in accordance with well-settled principles of agency therefore the rule is rigidly adhered to that those powers committed to an attorney which involve the exercise on his part of judgment or discretion . . . cannot he delegated by him to another without the consent of his client.” Mechem, Agency, § 814. The employment of other attorneys not being within the scope of his proper duties and powers, it does not bind his client as to their conduct unless ratified. Subdivision 2, § 502, Rev. Codes 1905. “So third persons dealing with such substitute would acquire no rights against the client inasmuch as such substitute is the agent of the attorney only, and not of his client.” Mechem, Agency, § 814; 4 Cyc. 950. “As an attorney is chosen with particular reference to his fitness and capacity, the established doctrine of agency that delegatus non potest delegare applies to him with especial force. So, it has been held that an attorney employed to prosecute a suit cannot delegate his authority to another attorney.” Cornelius v. Wash, 12 Am. Dec. 145, and note (Breese [Ill.] 63); Morgan v. Roberts, 38 Ill. 65; Jerome v. Bigelow, 66 Ill. 452, 16 Am. Rep. 597; Tobler v. Nevitt, 45 Colo. 231, 23 L.R.A.(N.S.) 702, 100 Pac. 416, 16 Ann. Cas. 925, 132 Am. St. Rep. 142, and note on page 160 collecting numerous authorities. 4 Cyc. 986, reading: “As
Again,' conceding the regularity of the service of the notice to vacate upon Cady, as purported attorney of record, nevertheless the case stands before us as a judgment thereafter taken by default through no fault of plaintiff, without his knowledge of the pendency of such proceedings, with no laches or unreasonable delay on his part intervening after judgment and before his application to'vacate the same, and with plaintiff showing prima facie an apparent ability to establish on trial a cause of action in his favor concerning the subject-matter by default judgment determined adversely to him. Judicial discretion exercised on an application to vacate a default judgment, where such discretion may be exercised, should tend to a reasonable degree toward permitting a trial on the merits. Racine-Sattley Mfg. Co. v. Pavlicek, 21 N. D. 222, 130 N. W. 228. But under these facts no discretion existed in the trial court to do aught but comply with the statute (§ 6884), and relieve plaintiff from such judgment taken against him by default, plaintiff having
The order appealed from is reversed, and the judgment entered against plaintiff is directed to be vacated. Defendant having in his application appeared below and asked for trial on the issues involved in the action, jurisdiction existed thereafter of the person of defendant, under § 6850. And no trial having been had, this case is remanded for trial on the merits. Judgment for taxable costs of this appeal will be entered in favor of plaintiff and against defendant, Hartzell. Let judgment be entered accordingly.