Johnson v. Holt's Administrator

• Decision Date: 14 October 1930
• Citation: 235 Ky. 518
• Parties: Johnson v. Holt's Administrator. Same v. Sullivan et al.
• Court: United States State Supreme Court — District of Kentucky

235 Ky. 518

Johnson v. Holt's Administrator.

Same v. Sullivan et al.

Court of Appeals of Kentucky.

Decided October 14, 1930.

1. Appearance. — Nonresident defendant by moving to quash attachment made "general appearance," notwithstanding motion recited appearance was special.

2. Appearance. — Appearance for any purpose other than to object to sufficiency of service of summons constitutes "general appearance."

3. Attorney and Client. — Nonresident defendant could not avoid legal effect of consenting to attorney's representing him by mere showing counsel had right to represent him only in event defendant was brought before court.

Under policy issued to defendant physician, insurance company agreed to defend and indemnify defendant against any suit for malpractice, without expense to defendant. After company received notice of suit, it appointed local counsel to represent defendant with defendant's consent, and thereafter such counsel accepted notice of taking of deposition, filed motion to discharge attachment, and objected and excepted to adverse rulings of court, and after adverse judgment he made motion to set it aside and instituted independent action to enjoin levy of execution and represented defendant on appeal.

4. Attorney and Client. — Where counsel has been employed, client cannot escape consequences by showing counsel's authority was limited by uncommunicated instructions, absent fraud or other inequitable conduct.

Appeals from Ballard Circuit Court.

BEN S. ADAMS, D.H. HUGHES and WHEELER & HUGHES for appellant.

C.C. GRASSHAM and M.C. ANDERSON for appellees.

OPINION OF THE COURT BY JUDGE CLAY.

Affirming.

These two appeals involving the same questions have been consolidated and will be considered in one opinion.

A.M. Holt, as administrator of the estate of O.T. Holt, deceased, brought suit in the Ballard circuit court against Drs. J.S. Johnson, J.F. Hahs, and G.L. Thompson, to recover damages for alleged malpractice resulting in the death of his intestate. The court gave a peremptory instruction in favor of Drs. Hahs and Thompson, and the jury returned a verdict against Dr. Johnson for $10,000. Thereafter Johnson moved to set aside the judgment, and about the same time brought an independent suit against the sheriff and others to enjoin the levy of the execution issued on the judgment. Each proceeding was based on the ground that Johnson was not before the court, and that the judgment was void. The motion made in the original action to set aside the judgment was overruled, and the action to enjoin the levy of the execution was dismissed.

The facts necessary to an understanding of the questions involved are these: Drs. Hahs and Thompson were local physicians and were before the court on service of process. Dr. Johnson lived in Cairo, Ill. Being a non-resident, an affidavit for a warning order was filed, warning order made, and warning order attorney appointed to defend for him. Upon allegations for an attachment and execution of bond a general attachment issued, and was levied on certain real estate owned by Johnson in Ballard county. At the time of the alleged malpractice Dr. Johnson had a policy of insurance issued by the Medical Protective Company by the terms of which it agreed, among other things, to defend and indemnify him "against any claim or suit for damages for malpractice, error or mistake"; and further agreed that "upon receipt of notice the company shall immediately assume full responsibility for the defense of any such claim or suit, and shall retain local counsel in whose selection the holder hereof shall have a voice, who in conjunction with the local department of the company shall defend without expense to the holder hereof," and "such defense shall be maintained until final judgment in favor of the holder hereof shall have been obtained, or until all remedies by appeal, writ of error, or other legal proceedings shall have been exhausted." With Johnson's consent the Medical Protective Company employed Ben S. Adams of Paducah to represent Johnson. As attorney for Johnson he accepted notice to take deposition and attended the taking, though he did not take any part in the proceedings. The notary certified that Adams agreed that the deposition might be read as evidence in the action, but this was denied by Adams and others who were present at the taking. However, Adams appeared in the Ballard circuit court and filed the following written motion:

"Now comes the defendant, Dr. J.S. Johnson, and without entering his appearance to this action enters this motion and moves the court to quash the general order of attachment that was sued out and issued in this action. Upon this motion the defendant prays the judgment of the court.

                                             "J.S. Johnson
                                       "By Ben S. Adams, Attorney."
                

The court overruled the motion, to which ruling defendant objected and excepted and prayed an appeal to the Court of Appeals, which was granted. The court ruled that this action on the part of Johnson's attorney constituted a general appearance, and brought Johnson before the court for all purposes.

We shall first consider the propriety of this ruling. In Whiting v. Budd, 5 Mo. 443, it was held that the dissolution of an attachment which was granted was a sufficient appearance in court to authorize the court to proceed against the defendant in person and enter a default judgment against him for want of a plea. In the case of Evans v. King, 7 Mo. 411, an appearance to quash the attachment "for reasons filed" was held to authorize a general judgment without personal service. In Robuck v....