Chamberlain v. Hedger

• Decision Date: 19 November 1897
• Citation: 73 N.W. 75,10 S.D. 290
• Parties: JOHN CHAMBERLAIN, Plaintiff and appellant, v. FRANK C. HEDGER et al., Brown county auditor, Defendant and respondent.
• Court: South Dakota Supreme Court

10 S.D. 290

73 N.W. 75

JOHN CHAMBERLAIN, Plaintiff and appellant, v. FRANK C. HEDGER et al., Brown county auditor,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Brown County, SD

Hon. A. W. Campbell, Judge

Appeal dismissed.

S. H. Cranmer

Attorneys for appellant.

J. H. Hauser

Attorneys for respondents.

Opinion filed Nov. 19, 1897

CORSON, P. J.

This case comes before us upon an order to show cause why J. H. Hauser, Esq., should not be substituted in place of George W. Jenkins, as attorney for the respondents, and the appeal dismissed, The facts disclosed by the affidavits and papers upon which the order to show cause was issued, briefly stated, are that George W. Jenkins appeared for the respondents on the trial of the case in the court below, and continued as their attorney of record until July 22, 1897, when he formally withdrew as such attorney. In June, 1897, being about to leave the state, he turned over the papers in the case to J. H. Hauser, and requested him to act as attorney for respondents, which said Hauser consented to do, though no formal substitution was made. Mr. Hauser, very soon after the papers came into his hands, made inquiry of the clerk of this court, and was informed that no record or other papers had been filed in that office; and thereafter, upon request of Mr. Cranmer, the attorney for appellant, he refused to make any stipulation in the case. On July 8, 1897, Mr. Cranmer filed in the office of the clerk of the circuit court of Brown county the papers in the case, and requested the clerk to certify them up to this court. On July 10th Mr. Cranmer filed the papers in the office of the clerk of this court, and presented to the court the following stipulation, signed by himself and Albert Gunderson, an attorney of this court:

“It is hereby stipulated and agreed by and between the parties to this action that the said cause be placed on the calendar of the present term of said court; that all objections to the time, manner, and form of the taking and perfecting said appeal, and all irregularities connected therewith, are hereby waived; and that said cause be heard by said court and submitted on the 10th day of July, 1897. Dated this 22d day of June, 1897.”

Thereupon the case was entered upon the April term calendar of this court, and submitted on briefs. No oral arguments were made, and the attention of this court was not called to the record in this case. On July 22d, Mr. Jenkins notified the respondents that he withdrew as attorney in the case, and thereupon three of the respondents (Hedger, Alley and Wood) formally retained the said Hauser, in writing, as attorney for the respondents, in place of said Jenkins. The fact that Mr. Jenkins left the papers in the case with Mr. Hauser in June, and that he was acting as attorney for respondents thereafter, was known to one of respondents, Mr. Alley, who was one of the board of canvassers; but whether known to the other respondents does not appear. On July 27th Mr. Hauser applied to this court for the order to show cause we are now considering, which was granted. In opposition to the order, and as cause why the relief asked should not be granted, Mr. Cranmer, on behalf of the appellant, presented the affidavit of Mr. Boardman, one of the four respondents, in which he states that after Mr. Jenkins left the state he retained Mr. Albert Gunderson for himself and co-defendants, and authorized him to waive all defects and irregularities, but he does not state that he had any authority from his co-defendants to so retain Mr. Gunderson for them. Mr. Cranmer also presented his own affidavit, in which he states that be was informed by Mr. Boardman that Mr. Gunderson had been retained, and that he thereupon entered into the stipulation above given with him. Mr. Cranmer, in his...