Harms v. Simkin

• Decision Date: 01 April 1959
• Docket Number: No. 29951,29951
• Citation: 322 S.W.2d 930
• Parties: Joe G. HARMS (Plaintiff), Respondent, v. James SIMKIN (Defendant), Appellant.
• Court: Missouri Court of Appeals

Page 930

322 S.W.2d 930

Joe G. HARMS (Plaintiff), Respondent, v. James SIMKIN (Defendant), Appellant.

No. 29951.

St. Louis Court of Appeals, Missouri.

April 1, 1959.

Motion for Rehearing or to Transfer to Supreme Court Denied

April 30, 1959.

Marvin Q. Silver, St. Louis, for appellant.

James L. Nouss, Nouss, Bamburg & Gaebe, Clayton, for respondent.

HOUSER, Commissioner.

This is an action upon a written contract to pay for professional services as an architect. Joe G. Harms, hereinafter 'Architect,' filed a petition against James Simkin setting up a written contract to pay $6,500 for architectural services in connection with the remodeling and reconstruction of certain buildings on Euclid Avenue in St. Louis. Simkin's answer admitted the execution and terms of the contract but denied that Architect performed the services according to its terms. During the trial Simkin filed a counterclaim for damages resulting from Architect's alleged performance of the services in a negligent and inefficient manner. Following trial by jury the Circuit Court of the City of St. Louis entered judgment for Architect for $6,500 on his petition and against Simkin on his counterclaim, Simkin has appealed from the judgment.

The approved transcript shows that after the filing of an answer Attorney A withdrew as counsel for Simkin; that Attorney B entered his appearance as counsel for Simkin; that on March 8, 1957, the case was continued to June 10; that on June 6 Attorney B withdrew as counsel for Simkin by leave of court for the reason that Simkin did not pay his fee. On June 13 Simkin appeared in Assignment Division 1 without counsel, stated to the assignment judge that he 'had to' represent himself, announced that he was not ready for trial, asked for and obtained leave to amend his application for continuance to read 'that said Eugene Portman has not prepared this cause for trial for this date,' and presented his motion for continuance. The court overruled the motion, stating that

'* * * the Court has had experience with the defendant before, and that in at least one other case the defendant employed at least four other lawyers for the purpose of getting continuances, and as the cases were reached on the trial dockets the lawyers withdrew, and that has happened in this case.'

Simkin denied dilatory tactics, claimed he had three lawyers and that each of them had been paid but that they had failed to prepare the case for trial. The assignment judge assigned the case 'forthwith to Division 6 for trial' and directed Simkin to 'go up in Division 6 and try your case.' The cause proceeded to trial on June 13, 1957. Simkin appeared pro se in the impaneling of the jury, the making of opening statements, the examination and cross-examination of witnesses, the filing of a counterclaim, and the argument of the case to the jury. The trial took four days. There are four approved sections of transcript totaling 353 pages of record. A fifth document, consisting of an affidavit of four legal size sheets of single-spaced typewriting captioned 'Supplemental Transcript of Proceedings had on June 13, 1957' has been filed in this court. It purports to be matter omitted from the transcript by reason of the inexperience and ignorance of Simkin--supposedly is a record of oral statements by Simkin to the judge of Division 6 protesting his unreadiness to go to trial, demanding the right to be represented by counsel, and pleading for delay in order to procure counsel and prepare for trial, together with statements of counsel for Architect objecting thereto and rulings by the court refusing to grant any further delay. This affidavit, prepared and filed here after the notice of appeal was filed, not stipulated by the parties and not ordered or directed by the trial court or by this court under the provisions of section 512.110, subd. 3 RSMo 1949, V.A.M.S. relating to corrections of omissions and the filing of supplemental transcripts, cannot be considered by this court. Hendershot v. Minich, Mo.Sup., 297 S.W.2d 403; Brown v. Stroeter, Mo.App., 263 S.W.2d 458.

On this appeal Simkin does not attack the judgment on the basis of the weight and sufficiency of the evidence, the propriety and correctness of the instructions, or 'the merits of the cause as tried.' The several points upon which Simkin relies for a reversal of the judgment raise the question whether Simkin was accorded a fair trial, and seek a ruling on the question whether he was deprived of his rights and property without due process of law.

Simkin asserts that he was deprived of a fair trial by the action of the assignment judge in permitting Simkin's counsel to withdraw from the case immediately before the time the case was set for trial, without time to retain new counsel or prepare for trial, and in denying a continuance on that ground; in assigning the case to a division for trial without the assistance of counsel, and in requiring Simkin to act involuntarily as his own counsel. Citing Magerstadt v. La Forge, Mo.Sup., 303 S.W.2d 130, Simkin forcefully insists upon his right to be represented by counsel at all stages of the litigation. He brands the action of the assignment judge in allowing Simkin's counsel to withdraw one week before the trial as arbitrary and complains that as a result of being forced to try his case pro se, without experience in the trial of cases, he was prejudiced; that Simkin's adversary was an experienced lawyer who was given free rein, whereas Simkin fumbled and stumbled in his attempt to defend himself, with the result that there was no contest.

A lawyer who assumes an employment should not throw up the unfinished task to the detriment of his client, except for reasons of honor or self-respect, and having assumed an employment has a right to withdraw only for good cause. He may be warranted in withdrawing if the client deliberately disregards an obligation as to fees, in which event he must give his client due notice and allow him time within which to employ another lawyer. Supreme Court Rule 4.44, 42 V.A.M.S. Here Mr. Portman withdrew for good cause, namely, for failure to pay the lawyer's fee, and with the permission of the court, one week before the trial date. The record does not show that Simkin was not notified, in time, of his lawyer's action in withdrawing, or that he was unable financially to make satisfactory arrangements with Mr. Portman, or that he tried to induce Mr. Portman to remain in the case, or that during the week allotted to him he made any effort to obtain the services of other counsel. The affidavit does indicate that Simkin had procured a Mr. Hamilton, who agreed to enter his appearance as his counsel if granted time for preparation, but we cannot consider this affidavit for the reasons heretofore given. The court did not err in permitting the withdrawal.

The mere fact that an attorney withdraws from a case does not give a party an absolute right to a continuance. Annotation, Continuance--Withdrawal of Counsel, 48 A.L.R.2d 1155, Sec. 2. The decision whether to grant or deny a continuance on this ground rests largely in the discretion of the trial court, and although that discretion is judicial in nature and reviewable on appeal, every intendment is in favor of the court's ruling. Savings Finance Corp. v. Blair, Mo.App., 280 S.W.2d 675, loc. cit. 678. Whether there has been an abuse of discretion on the part of the court in directing that a trial proceed in the absence of an attorney for a party depends upon the particular facts and circumstances in the given case. Brown v. Stroeter, supra. According to the assignment judge's statement, which we accept, Simkin had employed a series of lawyers in this case for the purpose of procuring continuances by the withdrawal of lawyers as the case was reached on the trial docket. Simkin had employed the same dilatory tactics in another case before the same judge. We have had a similar experience. After the case reached this court Simkin's Attorney X filed two motions for additional time to file a transcript on appeal. Attorney X then filed a motion to withdraw on the ground that the check which Simkin gave him for his fee had been returned for insufficient funds. Attorney Y thereupon entered his appearance for Simkin and filed a third motion for additional time to file a transcript. Attorney Y then filed a motion to withdraw on the ground that Simkin had not made financial arrangements for Y's fee. Simkin, appearing pro se, made an application for additional time to prepare and file a brief. When we denied this, present counsel for Simkin entered his appearance. Two different, successive lawyers in the trial court; three different, successive lawyers in the appellate court; four withdrawals of counsel, at least three for non-payment of fees. A defendant who employs a series of lawyers without making satisfactory financial arrangements for the payment of their fees, as a result of which he is never prepared for trial, cannot depend upon the courts regularly to postpone his case on the eve of the time set for trial on the ground that his counsel has withdrawn. He has only himself to blame if he is forced to go to trial without counsel. Inevitably a day of reckoning comes. By inattention to his case a party defendant may not be permitted to impede the orderly administration of justice and then complaint that the court has acted arbitrarily in holding him to the consequences of his own neglect. If the rule were otherwise, a defendant could indefinitely avoid trial, and 'there would be no end to the matter.' 12 Am.Jur., Continuances, Sec. 13, p. 456. June 13, 1957, was the day of reckoning for Simkin. The assignment judge judicially weighed Simkin's rights in the light of the attending conditions and circumstances, and exercised his judgment properly and within the bounds of judicial discretion. Brown v. Stroeter, supra; Savings Finance Corp. v. Blair, supra. There was no error either in...