Arthaud v. Griffin

• Decision Date: 26 October 1926
• Docket Number: 37599
• Citation: 210 N.W. 540,202 Iowa 462
• Parties: F. L. ARTHAUD, Appellant, v. C. J. GRIFFIN, Appellee
• Court: Iowa Supreme Court

210 N.W. 540

202 Iowa 462

F. L. ARTHAUD, Appellant, v. C. J. GRIFFIN, Appellee

No. 37599

Supreme Court of Iowa, Des Moines

October 26, 1926

Appeal from Warren District Court.--W. S. COOPER, Judge.

Appeal from an order overruling motion to reinstate a cause which had been dismissed for failure to file a written appointment of a resident attorney to defend suit.--Reversed and remanded.

Reversed and remanded.

F. L Arthaud and W. M. Wilson, for appellant.

A. V Proudfoot, for appellee.

FAVILLE J. DE GRAFF, C. J., and STEVENS and VERMILION, JJ., concur.

OPINION

FAVILLE, J.

The facts in this case appear without dispute. Appellant is an attorney, regularly engaged in practice as such, in the state of Missouri. W. M. Wilson is an attorney resident at Indianola, in this state, and duly admitted to the practice of law. Wilson had been previously associated with appellant in conducting a certain lawsuit in the district court of Warren County, Iowa. On the 8th day of August, 1925, Wilson filed in the office of the clerk of the district court of Warren County, Iowa, the petition in this cause, and at the same time delivered a copy of the petition to the attorney for the appellee. By inadvertence, Wilson failed to sign the petition as attorney for the plaintiff, but was, as a matter of fact, acting as attorney for the plaintiff. On or about the 20th day of August, 1925, Wilson entered his appearance as attorney for the plaintiff upon the appearance docket where said cause was filed, and also upon the judge's calendar. On September 1, 1925, the appellee, by his attorney, filed a motion to strike the petition in the above entitled cause, supporting same by an affidavit. In said motion and affidavit it is recited that the appellant herein appears as attorney for the plaintiff (himself) in said cause, and is a practicing attorney in the state of Missouri, and a resident of said state, and that he has not filed with the clerk of the district court of Warren County, Iowa, the written appointment of a resident attorney in the county of Warren and state of Iowa, where said petition is pending, as provided by Section 10919 of the Code of 1924. The court sustained said motion, and ordered the petition stricken from the record.

Thereafter, on the 15th day of September, 1925, the appellant filed a motion to reinstate said cause. Said motion recites the facts hereinbefore referred to, and alleges that Wilson inadvertently failed to sign the petition, at the time of filing the same, and that the omission was merely a clerical error on his part. It is also admitted in the record that Wilson had no written appointment as attorney for the plaintiff, except by correspondence, and that no written appointment under the statute was filed. Upon the statement of facts submitted with the motion, the trial court overruled the motion to reinstate the petition. From this ruling this appeal is taken.

Section 10919 of the Code of 1924 is as follows:

"Any member of the bar of another state, actually engaged in any cause or matter pending in any court of this state, may be permitted by such court to appear in and conduct such cause or matter while retaining his residence in another state, without being subject to the foregoing provisions of this chapter; provided that at the time he enters his appearance he files with the clerk of such court the written appointment of some attorney resident in the county where such suit is pending, upon whom service may be had in all matters connected with said action, with the same effect as if personally made on such foreign attorney within such county. In case of failure to make such appointment, such attorney shall not be permitted to practice as aforesaid, and all papers filed by him shall be stricken from the files."

The purpose of said section was to require lawyers from foreign states who practice before the courts of this state to appoint of record a local ...