Beach v. Beach

• Decision Date: 10 October 1889
• Citation: 6 Dak. 371,43 N.W. 701
• Parties: Beach v. Beach.
• Court: South Dakota Supreme Court

43 N.W. 701

6 Dak. 371

Beach

v.Beach.

Supreme Court of the Territory of Dakota.

Oct. 10, 1889.

Appeal from district court, Pennington county; Charles M. Thomas, Judge.Chauncey L. Wood and Gilger & Harrison, for appellant. W. I. Walker, for respondent.

SPENCER, J.

This action was brought by the plaintiff for a divorce against the defendant, on the ground of desertion and cruel and inhuman treatment. The defendant being a non-resident, service of the summons was obtained by publication, and after the completion of such service, the defendant not having appeared in any way in said action, the court, upon proof of such facts, directed a reference to take the proofs which might be offered in support of the allegations of the complaint, and report the same to the court. Such proofs were duly taken, and thereupon, and upon all the proceedings in the cause, the court, on the motion of the plaintiff's attorneys, Nowlin & Wood, made a decree dissolving said marriage, which was duly entered on the 28th day of November, 1885. Nothing further occurred in said action until July 7, 1888, when the defendant appeared by her attorney, and served on Chauncey L. Wood, as attorney for the plaintiff, (the firm of Nowlin & Wood, of which he was a member, having been theretofore dissolved,) a notice of motion, accompanied by certain affidavits, made in the district court, which granted such decree; that such judgment and decree be vacated and set aside, on the ground that the same was obtained by fraud and deceit; and that the affidavit on which the order for service of the summons by publication was granted was not sufficient to authorize the court to grant such order, or to give the court jurisdiction of the subject-matter of the suit; and that at the time the action was brought the plaintiff was not a bona fide resident of this territory. Such motion finally came on for hearing before the court September 7, 1888; a supplementary notice of such motion, directed to said George E. Beach and Nowlin & Wood, having in the mean time (August 25, 1888) been served on said Wood; and on that day the said Wood, being present, suggested to the court that the firm of said Nowlin & Wood had been dissolved; that he had not personally been employed by said plaintiff to resist said motion, but that he had learned the whereabouts of said plaintiff, and had informed him of the proceedings being taken by the defendant to set aside said judgment, and of the time the motion was to be heard; and that he had received from him, the day before, a telegram that he had forwarded by mail affidavits to be used in resisting said motion. The court thereupon decided that the service of notice of such motion was sufficient to confer jurisdiction upon it to hear and determine the same, to which the plaintiff, by his said attorney, then excepted, having appeared especially to object to the sufficiency of said notice. The court thereupon proceeded to hear said motion upon its merits, (the said Wood then appearing for said plaintiff, and resisting the same,) and, after hearing the proofs and arguments in behalf of the respective parties, found that said judgment was fraudulently obtained; that the court had not gained jurisdiction of the defendant; that the affidavit upon which the order for the service of the summons by publication was granted was untrue, to the knowledge of the plaintiff, and was made with intent to, and did, deceive the court; and ordered and adjudged that the decree and judgment dissolving the marriage between the plaintiff and defendant, November 27, 1885, be vacated and set aside, to which order the plaintiff duly excepted. This and the exception before noted present the only questions it is necessary to determine on this appeal, and will be considered in the order mentioned.

1. Did the court have jurisdiction of the plaintiff for the purpose of determining said motion? The general rule undoubtedly is that the power of an attorney under a general retainer expires when judgment is finally rendered, for usually there no longer exists any occasion for his services. The judgment is the final determination of the matters about which the attorney was retained. Macbeathv. Cooke, 1 Moore & P. 513. But this is not so for every purpose, for at the common law the attorney's power was supposed to continue a sufficient length of time after entry of judgment to permit him, where successful, to issue execution, and until such action as might be necessary for the collection and satisfaction of the judgment. Gilb. Ex'ns, 93. This rule has become a part of the statute law of this territory to such an extent that the attorney of record for the successful party may at any time collect the judgment and execute satisfaction thereof. Section 5107, Comp. Laws. So after final judgment, if appeal be taken or writs of error brought, the employment of the attorney of record, in the absence of special notice indicating the contrary, is presumed to have continued, and the statute provides that notice shall be served upon them in such case. Section 5336, Id. This was also the rule before the Code. If the judgment be entered irregularly, shall not the attorney whose duty it was to enter it properly be served with notice of motion that it be corrected? It would seem that he more than any other person, even the party himself, is the one that ought to be notified; for, having been the attorney of record, and conducted the matters to a conclusion, he is...