Burkhart v. Lasley

• Decision Date: 01 February 1938
• Docket Number: Case Number: 27511
• Citation: 1938 OK 63,75 P.2d 1124,182 Okla. 43
• Parties: BURKHART et al. v. LASLEY et al.
• Court: Oklahoma Supreme Court

1938 OK 63

75 P.2d 1124

182 Okla. 43

BURKHART et al. v. LASLEY et al.

Case Number: 27511

Supreme Court of Oklahoma

Decided: February 1, 1938

Syllabus

¶0 1. ATTORNEY AND CLIENT--Presumption of Authority of Attorney to Appear for Person Represented.

The authority of an attorney to appear for the person whom he is representing in court is presumed, though such presumption is rebuttable.

2. JUDGMENT--Degree of Proof Required to Vacate Judgment an Ground of Attorney's Lack of Authority to Appear.

Where it is sought to vacate a judgment on ground that the attorney appearing for a party was not authorized to so appear, the proof of such lack of authority must be clear and convincing.

3. EVIDENCE--Facts and Circumstances and Inferences Outweighing Undisputed Testimony.

Undisputed credible testimony, not inherently improbable, is usually binding upon the court or jury, but evidence is not regarded as undisputed if it is at variance with the facts and circumstances in the case or reasonable inferences to be drawn therefrom or from other evidence.

Appeal from District Court, Osage County; Jesse J. Worten, Judge.

Petition by Byron B. Burkhart and others to vacate a judgment; Victor Lasley and others opposing. Petitioners appeal from an order of the trial court denying petition. Affirmed.

D. E. Foley and John L. Arrington, for plaintiff in error Burkhart.

E. H. Mattingly, for remaining plaintiffs in error.

J. C. Cornett, C. S. Macdonald, F. W. Files, and Ralph A. Barney, for defendants in error.

PHELPS, J.

¶1 The defendant's wife obtained a divorce from him while he was in the penitentiary. She died before his release, and subsequently he filed a petition to vacate the decree. At the hearing upon said petition, in which he was opposed by the executrix of his ex-wife's estate, and by her heirs and beneficiaries, considerable evidence was heard, and the trial court denied the petition to vacate, from which order the defendant appeals.

¶2 The controlling question is whether the court's finding, to the effect that the defendant had authorized an attorney to appear for him in the divorce action, and thereby entered his appearance therein, is supported by the evidence. That being the contention, it will be necessary to review the evidence in considerable detail.

¶3 The defendant was committed to the federal penitentiary at Leavenworth, Kan., for the crime of counterfeiting, and entered that institution on March 18, 1934. His wife, and also his brother, lived in Osage county, Okla. His wife filed her petition for divorce in the district court of Osage county on May 11, 1934, on the grounds of extreme cruelty and conviction of a felony. She had a summons served upon him personally, by a deputy sheriff of Leavenworth county, Kan., while he was in the penitentiary. She did not file the affidavit necessary in cases where jurisdiction is acquired by service of summons upon the defendant when he is out of the state (First State Bank, etc., v. Lattimer, 48 Okla. 104, 149 P. 1099), and the parties concede that by such process the court did not acquire jurisdiction.

¶4 Nevertheless, as a part of the facts of the case, the defendant did receive the summons and shortly thereafter stated to a penitentiary guard by the name of Arnold, who testified by deposition, that his brother was coming to see him and that he wanted the guard to expedite the brother's pass, since the visit was on important business connected with the divorce action. He also stated to the guard, according to the guard's testimony, that he intended to ask his brother to get a lawyer to represent him in the divorce action. The next day his brother arrived at the penitentiary and the defendant was called to the visiting room. When he had almost arrived at the visiting room, and upon being told that it was his brother, he asked and was granted permission to return to his cell, in order to get the summons, which he had left there, so that he could have it while talking with his brother. He returned to his cell, obtained the summons, came back to the visiting room, and conversed with his brother for about two hours, talking over the divorce and other matters.

¶5 The brother returned to Pawhuska, in Osage county, and engaged an attorney to represent the defendant in the divorce action. It is conceded that defendant was of the opinion that if the trial could be delayed long enough his wife would reconsider and a reconciliation would take place. The brother told the attorney of this, and asked him to delay the proceedings as long as he could. The attorney had some success in delaying the case, for the trial was held October 29, 1934, which was about five and a half months after the petition had been filed.

¶6 If the attorney was authorized to represent the defendant in the divorce action, he having filed an answer and other pleadings in the case, this constituted an appearance on behalf of defendant and the defective process in connection with the summons is immaterial. On the other hand, if the attorney was not authorized to appear for the defendant, the court did not acquire jurisdiction of the person of the defendant. The parties agree that the case is governed entirely by the question whether the attorney was authorized to appear for the defendant.

¶7 The defendant points out that all of the testimony is to the effect that when the defendant's brother visited him in the prison the defendant did not authorize him to retain an attorney. The defendant himself so testified. His brother was present in the courtroom, but was not called as a witness by the defendant. The defendant's opponents then called him, and he testified that the defendant had not authorized him to engage in attorney. They then produced a sworn statement of his to the contrary, which he had formerly made to a federal investigator, wherein he had stated that ...