Bonnifield v. Thorp

• Decision Date: 25 January 1896
• Docket Number: 439.
• Citation: 71 F. 924
• Parties: BONNIFIELD et al. v. THORP.
• Court: U.S. District Court — District of Alaska

71 F. 924

BONNIFIELD et al. v. THORP.

No. 439.

United States District Court, District of Alaska.

January 25, 1896

J F. Maloney and Johnson & Heid, for plaintiff.

Bostwick & Crews, for defendant.

DELANEY District Judge.

While the courts are vested with a large discretion in determining applications of this character, its exercise must be confined to the limits prescribed by statute, which so far as this court is concerned, are laid down in section 102, pp. 242, 243, Hill's Code Or. This section provides that the court may, in its discretion, 'relieve a party from a judgment order or other proceeding, taken against him through his mistake inadvertence, surprise, or excusable neglect. ' The only testimony submitted in support of the application is the affidavit of one of the attorneys for the defendant. The allegations therein set forth are, substantially to the effect that he was under the impression that the time to answer was 60 days, but on examination of his office docket on the morning of the 23d of December, 1895, he learned that the answer was due that day; that he went to the office of Johnson & Heid, the attorneys of record for the plaintiffs, to get an extension of time to answer, but found neither of them in their office when he called, at 10 o'clock a.m.; that he was engaged in his office the balance of said day, and did not have an opportunity to see said attorneys until the next morning, when he saw Johnson going to the Juneau wharf with his hand baggage; that he spoke to him, and mentioned the fact that the time to answer had expired, and wanted an extension, and that Johnson referred him to Heid; that he soon after prepared a stipulation, and went to Johnson & Heid's office, and after he had stated that his client had been unexpectedly called to the state of Washington, and that he could not prepare an answer without his presence, the attorneys for the plaintiffs then and there refused to extend the time; that affiant then stated that, unless they gave him time to answer by stipulation, it would compel him to go to Sitka for an order of court for such extension; that thereafter, about 2:30 o'clock p.m., he saw the plaintiff Bonnifield, who signed with defendant's attorneys, a stipulation extending the time until the 1st of March, 1896; that it was then too late to reach the mail steamer, as the ferryboat had gone to Douglas Island; that his reasons for having Bonnifield sign the stipulation in person was that he had discharged his attorney, Malony, and no notice of substitution of any other attorney had been given; that, upon the argument of the demurrer, said Bonnifield was unrepresented by counsel, Johnson & Heid appearing for plaintiff Heid; that he is informed and believes that they have no authority to appear for Bonnifield, and that any action taken by them for him is unauthorized; that they have never advised defendant or his attorneys that they were authorized to act for Bonnifield, but on the other hand, stated in open court that they were not so authorized; that the default was taken through mistake, inadvertence, and neglect, as above fully set forth; that he relied upon the stipulation with Bonnifield, and therefore did not go to Sitka to get an extension, and also relied upon the fact that the attorneys for plaintiff Heid, knowing full well that he intended to answer, would not attempt to take a default or judgment. He also states that the defendant has fully stated the facts in the case to affiant, and from such statement affiant believes that defendant has a good and substantial defense on the merits. These allegations comprise all the testimony submitted by the defendant that is pertinent to the motion under consideration. Counter affidavits were filed by each of the plaintiffs' attorneys, denying the allegation that they are not the attorneys for plaintiff Bonnifield, and denying that they stated in open court that they were not authorized to represent him. The paramount question to be determined from this testimony, is, does it show such mistake, inadvertence, surprise, or excusable neglect as will warrant the court to set aside the default? Incidentally to this, the questions as to whether plaintiff Bonnifield had an attorney of record when the stipulation of the 24th of December, 1895, extending the time, was made, and the effect of such stipulation, are presented. The incidental questions will be first disposed of.

The summons and complaint both bear the signatures of Johnson & Heid and J. F. Malony, plaintiffs' attorneys, and the complaint is verified by Bonnifield. Service of a notice of appearance for the defendant by his attorneys is admitted May 4, 1895, by 'J. F. Malony and Johnson & Heid, Plaintiffs' Attorneys,' as is also an admission of service, of same date, of notice of motion to make more definite and certain. Service of the demurrer is admitted in the same manner, and in all the proceedings with reference to a writ of attachment and its discharge, subsequently occurring in the cause, notices are addressed by defendant's attorneys to 'J. F. Malony and Messrs. Johnson & Heid, Attorneys for Plaintiffs. ' On the 19th day of November, 1895, the plaintiff Bonnifield served a written notice upon Malony, discontinuing his services, which, however, was not filed until the 10th day of January, 1896, the day upon which all the papers having reference to this motion were filed. The record discloses no changes as to Johnson & Heid, nor any proceedings for any change at all, as provided by statute (Hill's Code, pp. 688, 689, Secs. 1042, 1043). Upon the record, then, as it appeared upon the 26th day of December, 1895 (the day the default was entered), the same attorneys who signed the original summons and complaint were still the attorneys for the plaintiffs. An inference might be suggested from the affidavit submitted in behalf of the defendant that Malony was the attorney for the plaintiff Bonnifield only, and that Johnson & Heid were the attorneys for Heid only. The rule, however, is too well settled to need the citation of any authorities, that a separate appearance must be so stated, and a general appearance for plaintiffs and defendants is an appearance by all the attorneys jointly, for all the clients; so that upon the record in the case, whatever the status of Malony may have been after he had been discharged by Bonnifield, Johnson & Heid were the attorneys of record for the plaintiffs upon the 24th day of December, 1895, when the stipulation in question was signed by Bonnifield.

There is no principle of practice better settled in our American law than that an appearance in court by an attorney for a client carries with it the presumption of authority to appear. This rule was early laid down by Chief Justice Marshall, speaking for the supreme court of the United States, in the case of Osborn v. Bank, 9 Wheat. 739. The learned chief justice there says:

'Certain gentlemen, first licensed by the government, are admitted by order of court to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause has always been received as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state or of the Union.'

From the multitude of authorities affirming the rule here stated, the following have been collated: Hill v. Mendenhall, 21 Wall. 453; Insurance Co. v. Oakley, 9 Paige, 496; Kelso v. Steiger (Md.) 24 A. 18; Steffe v. Railroad Co. (Mass.) 30 N.E. 1137; Bank v. Fellows, 28 N.H. 302; Taylor v. New Orleans, 41 La.Ann. 891, 6 So. 723; Norberg v. Heineman, 59 Mich. 210, 26 N.W. 481; Reynolds v. Fleming, 30 Kan. 106, 1 P. 61; Vorce v. Page, 28 Neb. 294, 44 N.W. 452; Garrison v. McGowan, 48 Cal. 592; Carter v. Koshland, 12 Or. 292, 8 P. 556.

The burden of proof rests upon him who denies the authority. Weeks, Attys. Sec. 344. The presumption of authority is not overcome by affidavit of opposing counsel, challenging authority, if the attorney appearing presents counter affidavit, asserting authority. Ring v. Glass Co., 46 Mo.App. 374. And allegations of belief are not sufficient. Facts must be stated. Valle v. Picton, 91 Mo. 207, 3 S.W. 860.

It may be observed here that the absence of any testimony on the part of Bonnifield concerning this matter is quite significant, as it appears that he was in Juneau on the 24th of December, 1895, when he signed the stipulation.

The practice is also well settled that the authority for an attorney to appear cannot be called into question except by a motion directly for that purpose, based upon affidavits showing, in the first instance, prima facie a want of authority; and, upon the hearing, such want must be established by clear and positive proofs. The proceeding may be by motion to vacate the appearance, to dismiss the action, or for an order requiring authority to be shown; and, in cases where the validity of an order, judgment, or decree depends on the jurisdiction of the court over the person of a party, acquired solely by an appearance of attorneys, the authority of such attorney may be attacked upon a motion to vacate the order, judgment, or decree. In the absence of some such proceeding, directly challenging the authority, the court will not hear or inquire into the question of the authority of the attorney for his appearance. Hollins v. Railroad Co. (Sup.) 11 N.Y.Supp. 27; Insurance Co. v. Pinner, 43 N.J.Eq. 52, 10 A. 184; Hill v. Mendenhall, supra; McKiernon v. Patrick, 4 How.(Miss.) 336; Howe v. Anderson (Ky.) 14 S.W. 216; Reynolds v. Fleming, supra; Williams v....