McFarland v. Curtin

• Decision Date: 02 May 1916
• Docket Number: 1408.
• Parties: McFARLAND v. CURTIN.
• Court: U.S. Court of Appeals — Fourth Circuit

233 F. 728

McFARLAND v. CURTIN.

No. 1408.

United States Court of Appeals, Fourth Circuit.

May 2, 1916

James S. McCluer, of Parkersburg, W.Va. (McCluer & McCluer, of Parkersburg, W. Va., on the brief), for appellant.

W. E Haymond, of Sutton, W.Va. (Haymond & Fox, of Sutton, W. Va on the brief), for appellee.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

KNAPP Circuit Judge.

The above-named appellant, plaintiff below, who claims to be the owner of a tract of land of some 500 acres in Webster county W. Va., sold the timber thereon, in May, 1902, to Ross F Stout and two others, who soon afterwards began cutting the same. Thereupon the defendant, Curtin, who also claims ownership of this tract, or some part of it, brought suit in the circuit court of Webster county against Stout and his associates to restrain the cutting operations which they had commenced, and obtained a temporary injunction. McFarland, who lived in Pennsylvania, was not made a party to this suit, but presently came in by petition, setting up his title, asking to be made a defendant, and adopting the answer which the other defendants had filed. Later, upon the pleadings in the suit and depositions of the parties, a motion was made to dissolve the injunction. This motion was overruled. The defendants took an appeal to the Supreme Court of Appeals of West Virginia, which reversed the lower court and remanded the case, 'with directions to dismiss the plaintiff's bill unless good cause is shown to the contrary. ' Curtin v. Stout, 57 W.Va. 271, 50 S.E. 810. As appears from the reported opinion, the reversal was upon the ground that a court of equity will not enjoin the cutting and removal of timber when there is a conflict of title to the land and the parties sought to be enjoined are solvent, as was found to be the fact in this case. The mandate of the Supreme Court was docketed in Webster county in May, 1905, and plaintiff asserts that he never knew, until shortly before this suit was commenced, that anything further had ever been done in the cause.

In this litigation, at least down to the time when the motion to vacate the injunction was denied, plaintiff was represented by H. C. Thurmond, an attorney of Webster Springs; but for the purpose of prosecuting the appeal he employed a lawyer by the name of Brannon, who then took charge of the case, though it appears that Thurmond continued as attorney of record and assisted in the preparation of the brief.

In June and July, 1905, and presumably because of the decision of the Supreme Court of Appeals in the equity suit, Curtin brought two actions at law against the same parties, including McFarland-- one an action in ejectment to recover the land in dispute, and the other for damages on account of timber cut before the injunction was granted. Process was issued in both actions, but no effort seems to have been made to serve the same on McFarland, either personally or by publication, and he alleges that he never heard of the suits until long afterwards.

After beginning these actions at law, and on the last day of July following, Curtin filed an amended bill in the equity cause, setting up the fact that he had begun an ejectment suit to establish his title to the land, and obtained another injunction. The amended bill was thereupon remanded to rules, with leave to sue out process and mature for hearing. Process was issued accordingly, but no service was ever had upon McFarland, either in person or by publication, and apparently as to him the cause is still pending. Nothing further appears to have been done in the law actions until January 10, 1906, when Thurmond, purporting to act as attorney for the defendants in the ejectment suit, filed a disclaimer of title to the lands described in the declaration, and the case was continued. On October 3, 1906, judgment was entered in this suit, reciting the disclaimer 'heretofore filed,' and awarding to Curtin the lands he sued to recover.

As already indicated, the plaintiff avers that he had no knowledge of the filing of the amended bill in the equity cause, and never knew or suspected that the actions at law had been brought, until discovery was made early in September, 1910, as he testified, by the attorneys employed by him to examine the title with a view to selling the property. Within 60 days or thereabouts this action was commenced, the main object of which is to set aside the judgment entered in the ejectment suit in favor of Curtin. There was a demurrer to the bill, which was overruled; but dismissal was ordered on final hearing, and plaintiff appealed to this court. His right to the relief sought is based upon the contention that the action of Thurmond in filing the disclaimer, on which judgment was entered, was wholly without his authority or assent, at the time or afterwards, and that therefore as to him the disclaimer and judgment, with all subsequent proceedings in the case, should be set aside and held for naught. The answer denies the Thurmond acted without authority and asserts the validity of the judgment.

We need not refer to acts of an attorney which will ordinarily bind his client, though done without the client's knowledge or consent, since the law is well settled that an attorney cannot, in a case like this, file a disclaimer or retraxit unless he is specially authorized to do so. As we have just had occasion to say in Glover v. Bradley, 233 F. 721, . . . C.C.A. . . ., decided May 2, 1916:

'But an attorney has no authority to execute a release of his client's claim except upon full payment. Gilliland v. Gasque, 6 S.C. 406. Nor has an attorney the power, except under special authority, to execute a retraxit or disclaimer, or otherwise to bind the client by the surrender, being in the nature of a retraxit or disclaimer, or other form of a surrender, being in the nature of a release, must be made by the party himself. Dickerson v. Hodge, 43 N.J.Eq. 47, 10 A. 111; Thompson v. Odum, 31 Ala. 108, 68 Am.Dec. 159; Gorham v. Gale, 7 Cow. (N.Y.) 739, 17 Am.Dec. 549; Hallack v. Loft, 19 Colo. 74, 34 P. 568; Coates v. Santa Fe Ry. Co. (15 Ariz. 25) 135 P. 717; Turner v. Fleming (37 Okl. 75) 130 P. 551 (45 L.R.A. (N.S.) 265, Ann. Cas. 1915B, 831); Forest Coal Co. v. Doolittle, 54 W.Va. 210, 46 S.E. 238.'

On the merits, then, the case at bar comes to the question whether the plaintiff ever authorized or ratified the act of Thurmond in filing the disclaimer. Although the bill does not charge Thurmond with fraud, and it may be assumed that he acted without wrongful intent, nevertheless he would be likely to give a favorable account of his conduct. But the most he says, as a witness for defendant, is that he has no distinct recollection that McFarland ever instructed him to enter an appearance in the ejectment suit; that he does not remember that McFarland ever authorized him to enter a disclaimer in that suit; and that he does not know whether or not he ever...