Cleveland v. Hopkins

• Decision Date: 09 September 1882
• Parties: CLEVELAND AND OTHERS v. HOPKINS, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

55 Wis. 387

13 N.W. 225

CLEVELAND AND OTHERS

v.HOPKINS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.

This action was commenced April 3, 1862, by the service of the summons upon the Marine Bank and certain alleged stockholders of the bank, including the appellant. The sheriff's return was to the effect that he had served the summons upon certain defendants named, including the appellant, by leaving a copy thereof at their several and usual places of abode (they not being found) with members of their respective families, persons of suitable age and discretion, to whom he stated the contents thereof. The complaint alleged that Hopkins owned $900 stock in the bank. April 27, 1869, the court ordered and adjudged that the bank had surrendered its corporate rights, privileges, and franchises, and that the same be dissolved; and thereupon the court referred the cause to Samuel M. Dixon, Esq., to examine and report as to certain matters, including the names of the stockholders. November 19, 1880, upon what appears to be the consent of the attorneys for the respective parties, and the request of the referee, the court appointed Hugh Ryan, Esq., as referee in place of Dixon. October 19, 1881, the referee so appointed made his report, which was confirmed by the court and judgment entered thereon November 21, 1881. December 31, 1881, the court, upon affidavits and a proposed answer, verified by said appellant, granted an order to show cause why the judgment should not be set aside as to the appellant, and he allowed to file such answer in the cause. The order to show cause was met by opposing affidavits, and, after being argued by the respective counsel and taken under advisement, was finally denied by the court May 25, 1882, and from the order entered thereon this appeal is brought.E. Mariner and Markham & Noyes, for respondents.

Winfield & A. A. L. Smith, for appellant.

CASSODAY, J.

There is no claim that the summons was personally served, nor that the appellant had any personal knowledge of the pendency or existence of the suit until after the entry of judgment. The name of the person with whom the summons was left does not appear. It does state that it was left with a member of his family, but this would seem to be a mere conclusion of the officer making the return. Johnson v. Curtis, 51 Wis. 597; [S. C. 8 N. W. REP. 489.] By naming or describing the person with whom the summons was left, it might be made to appear that such person was not at the time a member of the appellant's family. However this may be, it is manifest from the affidavits that the appellant never had any notice of the suit, much less that he ever authorized any one to appear for him in the case. About the time of the commencement of the suit the president of the bank retained the firm of Butler, Butrick & Cottrill as attorneys for the bank, and directed them to appear as attorneys for certain of the defendants therein, including the appellant, an alleged stockholder. But it does not appear that the president of the bank had any authority from Hopkins to give any such direction as to him. On the contrary, it appears from his testimony and affidavit that he knew nothing of such a suit until he saw in the newspapers an account of the entry of the judgment. If he knew nothing of the suit, then he had no occasion to employ attorneys to defend the same. Moreover, Mr. Butler and Mr. Cottrill, who seem to have had charge of the case on the part of the bank and other defendants, both disclaim any authority from Hopkins to appear in his behalf. Such being the facts, was the unauthorized and undoubtedly inadvertent appearance of Butler, Butrick & Cottrill in behalf of Hopkins conclusive upon the latter? Undoubtedly many conflicting opinions can be found in the books upon this question.

In Am. Ins. Co. v. Oakley, 9 Paige, 498, cited by counsel for the respondent, Chancellor Walworth states the rule thus: “As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regular licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client. But if the party for whom such solicitor appears, or assumes to act, denies his authority and applies to the court for the relief before the adverse party has acquired any rights or suffered any prejudice in...