Bradley v. Welch

• Decision Date: 10 February 1890
• Parties: BRADLEY et al. v. WELCH et al.
• Court: Missouri Supreme Court

12 S.W. 911

100 Mo. 258

BRADLEY et al. v. WELCH et al.

Supreme Court of Missouri.

February 10, 1890.

APPEARANCE — AUTHORITY OF ATTORNEY — JUDGMENT.

1. Plaintiffs, claiming to be the owners of 80 acres of land, filed 10 suits in ejectment against persons in possession of different lots; and writs of summons were duly issued in these cases. The

attorneys employed to defend them entered into a stipulation with plaintiffs which provided that in two cases to be tried as test cases, and in "suits now brought and about to be brought," defendants who have not been served with summons "enter their appearance, and waive service of summons." Held, that another case against defendants, in which the petition was simply lodged with the clerk of the court, with directions not to issue a writ of summons on it, and which had never been docketed as a pending cause, was not a "suit brought," within the meaning of the stipulation.

2. After the service of summons in the 10 cases, a public meeting was held, and a committee appointed to employ attorneys to defend the cases. The members of the committee did not know that any other petition had been left with the clerk; nor, in employing the attorneys, did they profess to make a contract for any person that might thereafter be sued. Held, that the fact that defendants attended the meeting at which the committee was appointed, and contributed to the fund to defend the suits, and that there was a general understanding that the attorneys would, for a reasonable fee, defend any other suits that might be brought, was not sufficient to constitute them defendants' attorneys.

3. Where there has been no ratification of the unauthorized act of an attorney in entering appearance for defendants, a domestic judgment entered thereon, without the service of summons on defendants, will be set aside on direct proceedings timely instituted, without regard to the question whether or not the attorney is responsible.

Appeal from circuit court, Pettis county; JOHN MONTGOMERY, Jr., Special Judge.

W. S. Shirk, for appellants. Geo. P. B. Jackson, for respondents.

BLACK, J.

The plaintiffs obtained a judgment against the three defendants for the possession of five lots, and for damages and costs, at the September term, 1886, of the Pettis circuit court. The defendants Welch and Ferguson were the tenants of the defendant Julius Blondon. At the same term the defendants filed their motion to set aside and vacate the judgment; and, as grounds therefor, they state that they had no notice or knowledge of the suit, and had never been served with summons, and did not enter, or authorize any one to enter, their appearance. From an order overruling the motion they sued out this appeal.

The record discloses the following facts: The plaintiffs resided in the state of California, and are called in the record the "Price Heirs." Through their attorney, they made claim to 80 acres of land in and adjacent to the town of Smithton. In December, 1881, they filed 10 suits in ejectment against persons in possession of different lots. Writs of summons were duly issued in these cases; and they were placed upon the court docket, in the usual course of business of the court. At the same time the attorney for the plaintiffs gave the clerk six or eight petitions against other persons, — one of them being a petition against these defendants, — and directed the clerk not to issue upon them at that time. The clerk or his deputy placed them in one envelope, and made the following indorsement thereon: "Sarah E. Bradley et al. v. Sundry Parties. Filed Dec. 14, 1881. Not to be issued on until further instructions from plaintiffs' attorneys." No writs were ever issued on any of these petitions, nor were they ever docketed as cases pending in the court. They remained in this envelope until 1884, when Mr. Jackson, the plaintiffs' attorney, got them from the clerk, for the purpose of having judgments entered thereon. When the writs in the 10 suits were served, many of the citizens of Smithton held a meeting, and a committee was appointed to employ attorneys to defend the cases. The committee employed attorneys, who executed the following receipt: "Price Heirs v. W. C. Overstreet. Same v. Nine Other Suits. Sedalia, Mo., Dec. 24, 1881. Received of W. C. Overstreet, H. Deaman, James Cook, Joe Warren, committee for the Smithton people, per hands of Jesse Fowler, one hundred dollars, being fifty dollars retainer fee for W. W. S. Snoddy and fifty dollars retainer fee for H. C. Sinnett, in said suits, pending in the circuit court of Pettis county, Missouri. Said one hundred dollars being one-half of the fee for said suits, and the balance to be paid at the termination of said suits. Said total fees to be for services in the said circuit court and supreme court, if carried there. For any future suits brought by the Price heirs, a reasonable fee for services in doing work, in drawing answers therein, shall be paid to said Snoddy and Sinnett. H. C. SINNETT. W. W. S. SNODDY." The defendant Blondon attended the meeting at which the committee was appointed to engage lawyers, and took part in it. He, as well as many others, who were not sued, and others who were not in the disputed district, contributed to the fund raised to pay the attorneys in the 10 suits. The proof is clear that he did not, until the present judgment was entered, in 1886, know that any petition had been filed against him or his tenants; and the persons composing the committee had no knowledge that any suits had been brought except the 10 in which writs had been issued. Sinnett and Snoddy appeared for the defendants in these 10 suits, and stipulated with the attorney for the plaintiffs to try the case against H. L. Cook, and let the other cases abide the result. In this stipulation they profess to act for H. L. Cook and "the defendants in all of the other cases brought by said plaintiffs." A change of venue was awarded the plaintiffs, in the case against H. L. Cook, to Lafayette county; but, a jury being waived in that court, the cause was sent back to the Pettis circuit court for trial with the other cases. In the mean time, Sinnett and Snoddy became anxious to take the case against James Cook — it being one of the ten duly docketed — for a test trial, and desired a continuance. The substitution was made, and a continuance agreed to, by a stipulation made and filed in the two Cook Cases, dated December 1, 1883. Among other things, this stipulation provides that the attorney for the plaintiffs, and the attorneys for defendants in the two Cook Cases, and "in suits now brought, and about to be brought," for the recovery of the 80 acres, agree as follows "That all who are now defendants, or who shall be made defendants, and...