Kluht v. Mitchell
| Decision Date | 24 June 1924 |
| Docket Number | 35734 |
| Citation | 199 N.W. 294,199 Iowa 1163 |
| Parties | ALBERT KLUHT, Appellant, v. DAVID MITCHELL, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED APRIL 8, 1925.
Appeal from Clarke District Court.--HOMER A. FULLER, Judge.
ACTION for alienating the affections of plaintiff's wife. Verdict and judgment for defendant. Plaintiff appeals.--Reversed.
Reversed and remanded.
Higbee & McEniry, for appellant.
O. M Slaymaker and A. M. Miller, for appellee.
This is an action for the alienation of the affections of plaintiff's wife. The case was tried by a jury, resulting in a verdict for the defendant. When the case was called for trial in the court below, on December 5, 1922, the plaintiff moved the court to require O. M. Slaymaker, one of the attorneys appearing for the defendant, to withdraw his appearance. In support of the motion he filed the affidavits of himself and one Montgomery. The affidavit of the plaintiff is to the effect that he employed Slaymaker to bring an action for divorce against his wife, Lavada Kluht, and an action against David Mitchell for alienation of his wife's affections; that Slaymaker accepted such employment in both actions, and, relying thereon, and understanding and believing that he represented the plaintiff, both as against his wife and David Mitchell, the plaintiff reposed full confidence in him, and divulged to him all of the facts on which the action against Mitchell was based, and gave him all the information within the knowledge of the witnesses; that Slaymaker asked plaintiff and his witnesses Montgomery and Seeley about the adulterous relations between the wife and Mitchell, and they divulged all the facts within their knowledge; that A. M. Miller, an attorney having an office with Slaymaker, prepared the petition for divorce, at the request of Slaymaker, and when the petition was shown to plaintiff, he said he wished to begin the action on the ground of adultery, but Miller said that the petition, being based on the ground of cruel and inhuman treatment, would amount to about the same thing; that, a few days after he so employed Slaymaker, the latter told plaintiff that Mitchell had been to see him, and that he did not believe Mitchell was "right in his head," and that Mitchell had admitted that he had had intercourse with plaintiff's wife a number of times, and made a full confession; that, after Mitchell had consulted Slaymaker, the former told plaintiff that Slaymaker had told him that he (Mitchell) had paid plaintiff's wife too much, and he should look to plaintiff for a rebate; that plaintiff discharged Slaymaker, and paid him $ 25, taking a receipt. The receipt referred to is dated May 17, 1921, and reads as follows: "Received of Albert Kluht $ 25.00 in full payment of all services." It is signed by both Mr. Slaymaker and Mr. Miller, and below the signatures the following appears: "This covers all services in the matter of the divorce case of Kluht vs. Kluht."
The affidavit of Montgomery is to the effect that he went with plaintiff to Slaymaker's office, and heard Slaymaker and plaintiff talking about a suit against David Mitchell for breaking up plaintiff's home; that Slaymaker asked plaintiff several questions about the case, and told plaintiff that Mitchell had been to see him; that Slaymaker inquired about different facts, and plaintiff was telling him all he knew about the case; that the affiant understood, from all that was said, that Slaymaker was plaintiff's attorney, and was going to bring suit against Mitchell for alienation of the affections of plaintiff's wife.
The motion was resisted on the ground that it was filed too late, and also on the facts. Mr. Slaymaker made a professional statement, that was received without objection, to the effect that, in the September previous, counsel for plaintiff told him they were going to file objections to his appearance in the case, unless he agreed that he would not appear; and that he replied that he did not see any reason why he should not appear; and that no objections or motions were made until the case was called for trial. He denied that he was ever employed by plaintiff relative to any suit or claim he made against Mitchell in regard to alienating the affections of his wife, or that he accepted such employment. He stated that his only employment was to bring an action for divorce, on the ground of cruel and inhuman treatment, and that plaintiff never at any time divulged any claim against Mitchell, and never said his wife had been guilty of adulterous relations with Mitchell, and did not tell him any of the facts involved in the alienation suit; that, after the suit for divorce was commenced, plaintiff directed him to dismiss it, and paid him $ 25 for his services in that case alone; that plaintiff's witnesses did not detail any claim against Mitchell.
Mr. McEniry, an attorney for plaintiff, stated professionally that he had told Slaymaker in September that, at the time the case was called for trial, if he insisted on appearing in the case and taking part in the trial, objections would be made to his appearance, on the ground stated in the affidavits; that this statement was made to Slaymaker as a matter of courtesy, and to give him an opportunity to withdraw voluntarily.
There was offered in evidence the transcript of a hearing in regard to temporary alimony in the divorce case of Albert Kluht v. Lavada Kluht, from which it appeared that the defendant in that action was cross-examined by Mr. Slaymaker as to where she and her husband had been living. She replied: "We moved in with Dave Mitchell." She was asked concerning trouble about men coming to the house, and if she did not have a signal to indicate whether her husband was at home or not, which she denied.
The motion was overruled, and the case proceeded to trial. Mr. Slaymaker cross-examined the plaintiff. Objection was made to this, on the ground that he was in possession of confidential statements made by the witness to him in his capacity as an attorney, and he should not be permitted to cross-examine the witness and use knowledge he gained in a confidential way from him as a client in the divorce action and in this matter. The objection was overruled. To both the ruling on the motion and on the objection, exceptions were preserved.
The trial resulted, as has been said, adversely to the plaintiff and appellant. The error assigned upon these rulings by the court is the only question presented on this appeal.
The determination of the question presented depends upon three propositions: (1) Whether appellant's motion came too late; (2) if not, whether such facts were established as to require that the motion be sustained; and (3) whether prejudice resulted.
The motion was not presented until the case was called for trial in December; but it is conceded that counsel for appellant had stated to Mr. Slaymaker, in September preceding, that such motion would be filed unless he agreed to withdraw from the case. Mr. McEniry's statement is to the effect that he then advised Mr. Slaymaker that the motion would be made when the case was called for trial. Mr. Slaymaker and the appellee, through him, were fully advised that the motion would be made unless the former withdrew from the case,--and he claims that he then declined to withdraw,--in ample time to have enabled appellee to engage other counsel, if he desired to do so. There is no suggestion that anything was said to indicate any abandonment of the announced intention to file the motion when the case was called for trial, if Mr. Slaymaker persisted in his purpose to participate in the trial. On the contrary, his refusal to withdraw presented the very situation under which he was advised that the motion would be made. Moreover, appellee was represented by another attorney, whose right to appear for him was not questioned. Any disadvantage that would have resulted to him from the necessity of proceeding to trial with but one attorney, or of then procuring additional counsel, if deemed advisable, cannot weigh against the manifest prejudice to the appellant of having his opponent represented on the trial by an attorney to whom he had at one time intrusted his cause. Appellee, after assurance that the motion would be made, came to the trial in a situation open to the attack made. We think the motion was not too late to require a ruling on its merits.
Upon the merits of the question, we are constrained to say that the motion should have been sustained. The affidavits filed in support of the motion clearly show the employment of Mr Slaymaker by plaintiff, not only to procure a divorce, but to prosecute the present action, and the giving to him of all the facts upon which plaintiff relied to sustain both actions, and other circumstances tending strongly to support the claim of an employment. The divorce suit was begun; and the sworn testimony is to the effect that the attorney said he would write to Mitchell and demand a settlement of the other matter, and that thereafter, he told plaintiff that Mitchell had made a full confession of his relations with plaintiff's wife. The petition in the divorce action, it is true,...
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