McWhirter v. Donaldson

• Decision Date: 23 August 1909
• Docket Number: 1984
• Citation: 104 P. 731,36 Utah 293
• Court: Utah Supreme Court
• Parties: McWHIRTER v. DONALDSON et al

104 P. 731

36 Utah 293

McWHIRTER v. DONALDSON et al

No. 1984

Supreme Court of Utah

August 23, 1909

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by William McWhirter against James Donaldson and others.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

Thurman Wedgwood & Irvine for appellant.

James Ingebretsen for respondent.

McCARTY J. FRICK, J., concurs. STRAUP, C. J., dissents.

OPINION

McCARTY, J.

This action was begun in the district court of Salt Lake County to recover for money had and received. The complaint was filed October 18, 1906, and on November 19, 1906, summons was served on defendant James Donaldson. The other defendants were not served with process, nor did they appear in the action. On October 2, 1907, nearly a year after the service of summons, judgment by default was rendered in favor of plaintiff and against defendant Donaldson for the sum of $ 1353.33. On October 12, 1907, Donaldson moved the court to set aside the default and vacate the judgment, and permit him to file an answer which he presented in connection with his motion. He filed several affidavits, and introduced oral testimony in support of the motion. Counter affidavits were filed by plaintiff. The court overruled the motion, and Donaldson appealed.

The facts leading up to and surrounding the entry of default and the rendering of judgment thereon, and the grounds upon which Donaldson relied to have the judgment vacated and the case reopened, as shown by the files in the case and the affidavits presented and the testimony introduced at the hearing on the motion, are as follows: On or about September 19, 1906, plaintiff, in company with his brother, Alexander McWhirter, visited a certain rooming house in Salt Lake City Utah, and engaged in a game of cards called "stud poker" with the defendant Donaldson. The money sued for in this action was bet and lost by plaintiff and won by Donaldson. The McWhirters employed M. P. Braffet, an attorney at law, to commence the action, and take whatever steps he might deem necessary to recover the money bet and lost on the game of cards referred to. Before the complaint was filed, it was discovered that certain moneys belonging to Donaldson could be attached and held to satisfy any judgment that the McWhirters might obtain against him. To enable the McWhirters to furnish the undertaking required in attachment proceedings, Braffet consented to become one of the sureties. It therefore became necessary, under section 133, Comp. Laws 1907, for the McWhirters to procure the services of some other attorney to prosecute the action which they were about to commence. Braffet, with the knowledge and consent of the McWhirters, made arrangements with Samuel Russell, an attorney at law, to appear as attorney of record in the action which they were about to begin. Russell signed the summons and complaint as plaintiff's counsel, copies of which were served on Donaldson. Immediately after the action was begun, an undertaking on attachment was filed in the case with Braffet as one of the sureties, and certain money $ 1025 belonging to Donaldson was attached. After Donaldson was served with summons and a copy of the complaint, he employed S. R. Thurman and S. A. King, both of whom are attorneys of recognized ability, to take charge of and conduct his defense. It is alleged by Thurman and King in their affidavits filed in support of the motion to set aside the default and vacate the judgment that Braffet represented to them that, notwithstanding he had become surety on the attachment bond referred to, he nevertheless continued to remain in charge of the case for the McWhirters, and that "Russell was the attorney of record in said cause, was acting for him as a matter of courtesy, and was only the nominal attorney, and that said Braffet had the actual charge of the conduct of said cause." Braffet made affidavit to the same effect. William McWhirter, plaintiff, in an affidavit which he filed in opposition to the motion, says: "The suit was brought in my name by the said Samuel Russell, and at that time, and ever since the commencement of this suit, I have understood that Samuel Russell was my attorney at law in the prosecution of this action." Before the statutory time for filing an answer had expired, Thurman and King met Braffet, and informed him that they were preparing an answer to plaintiff's complaint on behalf of Donaldson, and that Braffet stated to them that he desired to amend the complaint, and requested them to defer the preparation of their answer until after they had been served with an amended complaint, which they consented to do. It must be borne in mind, however, that Donaldson's attorneys on this occasion consulted with Braffet well knowing that he was at the time one of the sureties on an attachment bond in the same action, and that Russell was the attorney of record for plaintiff. And the record shows that they so recognized Russell. On November 30, 1906, a little more than a month after the commencement of the action, a written notice was served on Russell, which recited that defendant Donaldson would on November 30, 1906, move the court to release the money theretofore attached in said cause. This notice, which was directed "to the plaintiff above named, and to his attorney, Samuel Russell," was signed by S. R. Thurman. Indorsed on the notice was the following acceptance: "Received copy of the foregoing notice this 30th day of November, A. D. 1906. [Signed] Samuel Russell, Attorney for Plaintiff." The money attached by plaintiff was upon Donaldson furnishing an undertaking as provided by section 3085, Comp. Laws 1907, released. S. A. King, one of Donaldson's attorneys became surety on the undertaking. The order of court releasing the money was made and entered of record November 30, 1906. No further proceedings were had of record in the case until September 12, 1907. In the meantime the McWhirters became dissatisfied because of the delay in bringing the action to an issue, and on August 6, 1907, Alexander McWhirter paid Braffet for his services, and released him from further responsibility in the case. Braffet thereupon gave McWhirter a receipt, of which the following is a copy: "Rec'd of Alexander McWhirter the sum of fifty dollars in full settlement of all claims which I may have had pending against him up to this time, and I have no further interest in any civil action or actions which he or his brother William may bring against any party or parties. This is not intended as a release of the claim of Samuel Russell for his services in pending suit. M. P. Braffet." McWhirter decided "to have the case pushed more vigorously," and with that object in view called upon Russell and consulted him in regard to the matter. Russell informed McWhirter that it was somewhat embarrassing for him to continue as attorney in the case, as he and S. A. King, one of Donaldson's attorneys, occupied and used the same office, whereupon arrangements were made with Russell for his fee, and on September 12, 1907, Russell filed in the cause the following notice, a copy of which was served upon S. R. Thurman: (After title) "To Said Defendant James Donaldson and to His Attorney: You will take notice that the undersigned has and does hereby withdraw his appearance as attorney for plaintiff in the above entitled cause. Samuel Russell. Salt Lake City, Utah, September 12, 1907." The following acknowledgment of service is indorsed on the notice: "Received copy of foregoing notice this 12th day of September, 1907. Thurman, Wedgwood & Irvine, Attorneys for Defendant Donaldson." As McWhirter was leaving Russell's office on the occasion referred to, he met S. A. King, and King inquired of him what he was "going to do about the case." King, in his affidavit, which was filed in the case in support of the motion to vacate and set aside the default, says: That he was advised by McWhirter "that Mr. Russell would no longer act as counsel in this case, and that his connection with the same had been terminated;" that McWhirter also stated that James Ingebretsen had been employed as counsel for plaintiff in said cause; that he, King, immediately telephoned Ingebretsen, and desired to know if he had been so employed and at the same time stated to him that a stipulation existed extending the time for answering, and that he would like to have the benefit of the stipulation; that Ingebretsen answered that he had not been employed, but had been spoken to concerning the matter, all of which is admitted by Ingebretsen in his counter affidavit filed in the case, but he also avers in his affidavit, which averment is not denied: "I replied that I had not been engaged and could not and would not obligate myself in any way, but that my hands must be free to take such action as might be directed by my clients." He further recited in his affidavit "that he (King) then asked me whether I would notify him when I was employed, and I then and there expressly told him that I would make no promises, and would not obligate myself in any way until I was employed." King, in his affidavit, says that Ingebretsen on this occasion promised that, in case he should be employed by the McWhirters, he would notify him, King, of such employment. No further conversation nor communication was had between Ingebretsen and either of the attorneys for Donaldson. King at the time he claims to have had this understanding with Ingebretsen was surety on the bond given by Donaldson to release certain funds hereinbefore mentioned which had been attached by plaintiff, and he was therefore, under section 133, Comp. Laws 1907, which we shall further on in the opinion again refer to and more fully discuss, disqualified from appearing or acting as...