Keith v. Wilson

• Decision Date: 31 August 1840
• Citation: 6 Mo. 435
• Parties: KEITH v. WILSON.
• Court: Missouri Supreme Court

6 Mo. 435

KEITH

v.WILSON.

Supreme Court of Missouri.

August Term, 1840.

APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY.

LEONARD, for Appellant. 1st. The proceeding in the name of Wilson ought to have been dismissed, because it was commenced and carried on without his authority, knowledge or consent. M'Alexander v. Wright, 3 Monroe R. 189; Robison v. Eaton, 1 Term R. 62; Opinion of Justice Van Ness in Denton v. Noyes, 6 Johns. R. 306, and cases there cited. 2nd. Wilson ought not to have been excluded as a witness. Parker v. M'William, 19 Eng. Com. L. R. 204; Beamon v. Ellice, 19 Eng. Com. L. R. Cond. 538; Rex v. Colly, M. & M. 399, and Rex v. Brown, both cited in note to Beamon v. Ellice, 19 Eng. Com. L. R. Cond. 538; Cook v. Netherton, 25 Eng. Com. L. R. 627; Doe ex dem. Good v. Cox, In. R. B. 30 George III, cited in note to last mentioned case.

KIRTLEY, for Appellee. 1st. The Circuit Court committed no error in overruling, at the August term, 1839, Keith's motion to refuse leave for Wilson's interpleader to be proceeded in. 6 Johns. R. 34, Smith v. Stewart; Denton v. Noyes, 6 Johns. R. 296; 1 Strange, 693; Lorymen v. Hollister, Cro. Jac. 695; Alleby v. Colly, 1 Binney R. 214, 479; 7 Pick. R. 137, Smith v. Bowditch. 2nd. The Circuit Court committed no error in refusing to permit the witness Wilson to give evidence. 1 Stark. Ev. 163; C. Bingham, 683; Parker v. M'William, 4 Carrington & Bayne, 585; Beamon v. Ellice, 1 Ry. & M. 430; 1 Woody & Malcolm, 329; 3 Stark. Ev. 1733; 1 Ph. Ev. 268.

NAPTON, J.

Keith commenced an action of debt against Elisha Lambert, in the Boone Circuit Court, returnable to the November term, 1838, and attached, upon making the necessary affidavit, three slaves and other personal property as the property of Lambert. At the return term, leave was given to James Wilson to interplead in the cause; an interplea was accordingly filed, claiming the property levied on, upon which issue was taken. At the April term, 1839, the cause was continued at the instance of Keith, and afterwards at the August term, 1839, before the trial came on, Keith moved the court to refuse leave for the interpleader to be further proceeded in, because the said proceeding was instituted without any authority from James Wilson, and without his knowledge or consent. In support of this motion, Keith read his own affidavit which set forth the following state of facts: The property attached originally belonged to one Nancy Vanlandingham, who intermarried with one James Wilson, sometime in the spring of 1831. Said Wilson came to the State only a few months previous to his marriage. Wilson lived with his wife a few days, and then left the State under pretense of going to Ohio to procure some property, which he alleged had been left him by his father. Previous to his marriage with Miss Vanlandingham, the affidavit states, Wilson had intermarried with a Miss Allen, of Ohio, who had ever since been his wife, was still living, and by whom he had several children. Some years after Wilson left this State, Nancy Vanlandingham intermarried with Lambert, the defendant, and died, leaving by him one child, her only heir at law. The property in question is claimed by Wilson by virtue of his marriage with Miss Vanlandingham. Wilson has never been in the State since his abandonment of this lady, and the affiant avers, that the proceeding is carried on in his name without his knowledge or consent.

In opposition to this motion, the affidavit of Merritt Vanlandingham was read, which denied the validity of Lambert's marriage, but did not allege any authority from Wilson, or deny his non-residence. It was also shown, on the hearing of this motion, that Todd and Kirtley, whose names where signed to the interplea, were licensed attorneys of the Boone Circuit Court. The Circuit Court, overruled the motion to dismiss. On the trial of the cause, the court on the application of Keith, directed the witnesses to absent themselves from the court house so as to be without the hearing of those under examination. Evidence was then given on behalf of the claimant, conducing to show that he had come into possession of the property attached by his intermarriage with Nancy Vanlandingham in 1831, and that after living with her a short time, he left this State, leaving the property in her possession.

Keith then read depositions to show that previous to Wilson's marriage with this lady, he had intermarried with a lady in Clermont county, Ohio, and that his wife, in Ohio, was living at the time of the second supposed marriage, that he had never been divorced, &c. The object of the testimony was to identify the Wilson of Ohio, who was married to Miss Allen, with the Wilson who married Miss Vanlandingham. For this purpose, appellant offered to introduce one Alexander Wilson, who had been sworn and charged under the order of the court to keep without the hearing of the witnesses when examined. Counsel for the claimant objected, and showed that this witness had disobeyed the orders of the court, by taking a seat near the door, and had heard much of the testimony on the question of identity, the material question on the issue. It was admitted that neither Keith or his counsel consented or connived a this conduct of the witness. The court refused to let the witness be examined; after other testimony was submitted to the jury, a verdict was rendered for the interpleader. A motion was then made to set aside the verdict, because of the exclusion of the witness Alexander Wilson. On the hearing of this motion the affidavit of Wilson was read, who denied any intentional disobedience to the orders of the court, and avowed that he had taken his seat within hearing of the witnesses under examination, without the direction of Keith or his counsel, and under a misapprehension of the object of the order. The affidavit of Keith in relation to the materiality of the testimony of this witness was also read. The court overruled the motion for a new trial and exceptions were duly taken.

The questions presented to the consideration of this court, are, first, did the court err in refusing to dismiss the interpleader, for the causes alleged, and secondly, was the witness, Alexander Wilson properly excluded. 1. The effect and validity of a judgment, obtained by the appearance of an attorney, without any authority, has been variously determined by the courts, both in England and this country. Whether the judgment be absolutely void, and no bar to a subsequent action, or whether the judgment must stand, and the remedy of the losing party is against the attorney of record, is not, I think, very satisfactorily settled by adjudged cases. In the case of Denton and others v. Noyes, 6 Johns. 296, it was held by a majority of the court that a judgment obtained by confession, without any authority from the defendant to the attorney who confessed the judgment, was so far regular that the lien acquired by the plaintiff should not be disturbed, but it might be opened for a trial on the merits. Such judgments were also held to be invalid, where there was collusion between the attorneys on both sides, or where the attorney, who assumes without authority to act for another is irresponsible. His...