Munhall v. Mitchell

• Decision Date: 24 February 1914
• Citation: 163 S.W. 912,178 Mo.App. 494
• Parties: MAGGIE E. MUNHALL, Appellant, v. S. DUFFIELD MITCHELL et al., Respondents
• Court: Missouri Court of Appeals

163 S.W. 912

178 Mo.App. 494

MAGGIE E. MUNHALL, Appellant, v. S. DUFFIELD MITCHELL et al., Respondents

Court of Appeals of Missouri, Springfield

February 24, 1914

Appeal from Jasper County Circuit Court. Division Number Two.--Hon D. E. Blair, Judge.

AFFIRMED.

Judgment affirmed.

H. T Harrison for appellant.

(1) An attorney at law is an officer of the court, and is not required to produce a warrant of attorney in any case pending in the court. His professional obligations raises the presumption that he has such authority. State ex rel Ponath v. Muench, 230 Mo. 236. S. C. 130 S.W. 282, and authorities cited. Sec. 1728, R. S. 1909; State ex rel. v. Crumb, 157 Mo. 557; Miller v. Continental Assur. Co., 233 Mo. 91. (2) The burden of proof rests upon the person who denies the attorney's authority. Week's, Atty's. sec. 344; Ring v. Glass Co., 46 Mo.App. 374; Valle v. Picton, 91 Mo. 207; Bonnifield v. Thorp, 71 F. 924. (3) The authority of an attorney to appear in an action will be presumed until the contrary is shown. Norberg v. Heineman, (Mich.) 26 N.W. 481; Schlitz v. Meyer, (Wis.) 21 N.W. 243; Pressley v. Lamb, (Ind.) 4 N.E. 682. Boston Tunnel Co. v. McKenzie, 67 Cal. 485; 8 P. 22; Reynolds v. Fleming, 30 Kan. 106; 1 P. 61. (4) The evidence shows that when the employment was made Pennock Hart was disclosed as the principal. And his letter dated the 13th of March, 1913, left no doubt as to who the principal was, and for whom the attorney was acting. Said letter being competent and legal evidence should have been admitted in evidence and the motion to quash the writ and dismiss the proceedings should have been overruled.

J. H. & W. E. Bailey and Thomas & Hackney for respondents.

(1) A sufficient affidavit for appeal is necessary to confer jurisdistion on the appellate court. Ironworks Company v. Lead & Zinc Co., 126 Mo.App. 238, and cases therein cited. (2) Since the Act of Legislature approved March 7, 1907, amending what was then Sec. 3748 of the Revised Statutes of 1899, an assignee of a judgment became the proper party plaintiff in a scire facias to revive a judgment. Session Laws of 1907, 320; R. S. 1909, Sec. 2159; Rayburn v. Handlan, 165 Mo.App. 412; R. S. 1909, Sec. 729. (3) The party to a judgment to be benefited by an appeal should join in it and unless so joining he has no standing in the appellate court. Freeman v. McCrite, 165 Mo.App. 1. (4) The assignee is the only proper person to maintain an action on a judgment or to sue out scire facias for its revival. 2 Black on Judgments, 951; Wonderly v. LaFayette Co., 74 F. 702; Edmonds v. Montgomery, 1 Iowa 829; Charles v. Hasking, 11 Iowa 829; Steele v. Thompson, 62 Ala. 323; Moore v. Norwell, 94 N.C. 265; Clark v. Biggess, 5 Gill 109. (5) To establish the relation of attorney and client, the attorney must agree to be the attorney of the party and the party must agree to have the other for an attorney, otherwise there is no contract or employment. West v. Freeman, 69 App. 682. This being the case it became and was the duty of the court on this state of facts appearing to quash the writ and dismiss the case. (6) A suit commenced by an attorney without authority may be dismissed on motion of the defendant. Cemetery Association v. McCune, 119, Mo.App. 349; Valle v. Picton, 91 Mo. 207; Robinson v. Robinson, 32 Mo.App. 88; Frye v. Calhoun County, 14 Ill. 132; Lindheim v. Manhattan Ry. Co., 68 Hunn. 122; Prentiss v. Kelly, 41 Me. 436; 4 Cyc. 930; New York City Commissioners v. Purdy, 36 Barber 266; Manchester Bank v. Fellows, 28 N.H. 302; Vincent v. Vanderbilt, 10 Howard Prac. 324; Hirsch v. Fleming, 77 Ga. 594.

FARRINGTON, J. Sturgis, J., concurs. Robertson, P. J., not sitting.

OPINION

FARRINGTON, J.

On July the sixth, 1912, an application was made by attorney H. T. Harrison to the circuit court of Jasper county for a writ of scire facias to renew the lien of a judgment rendered on July the tenth, 1909, in a suit of Maggie E. Hunhall, plaintiff, against S. Duffield Mitchell, defendant, praying that the lien of said judgment be revived against the real estate of S. Duffield Mitchell, and that the writ of scire facias issue to said Mitchell and to his terre-tenants, W. S. Crane, W. B. Kane, and J. C. Miller. The amount of the judgment sought to be revived was $ 2849.64. The writ was issued as prayed. Mitchell made no answer. Miller answered, setting up that the judgment and costs had been fully paid and no longer constituted a lien against the property he had leased. Kane in his answer denied that he was Mitchell's tenant or that he was in possession of any real estate belonging to Mitchell or any effected by the judgment of Maggie E. Munhall. Crane answered, denying the allegations of the writ. The reply admits that the costs had been paid, but avers that no part of the judgment was satisfied, and denies the new matter set up in the separate answer of Miller.

On the seventh day of March, 1913, the following motion was filed by the terre-tenants:

"Now at this day comes W. S. Crane, W. B. Kane and J. C. Miller, terre-tenants of the defendant, S. Duffield Mitchell, and moves the court to quash the scire facias, issued by this court in the above-entitled cause, and to dismiss the proceedings therein for the following reasons, to-wit: First, that the suing out of the scire facias was wholly unauthorized by the plaintiff, Maggie E. Munhall, or by any assignee of said plaintiff, holding any right or title or assignment to said judgment. Second, that said scire facias proceedings were issued at the instance and request of the defendant, S. Duffield Mitchell, and was then and there issued at his request without any authority or request of said plaintiff, Maggie E. Munhall, or at the request or instance of any assignee of said plaintiff holding any right or title thereto."

On the tenth day of March, thereafter, the court heard evidence on the motion and sustained the same and dismissed the scire facias proceeding. At this hearing, the record shows that plaintiff introduced the judgment originally entered and proved a written assignment thereof from Maggie E. Munhall to one Pennock Hart, the acknowledgment of which assignment shows that it as made in Allegheny county, Pennsylvania. With this, plaintiff rested. On the part of the terre-tenants, H. T. Harrison, the attorney appearing in this cause for the plaintiff, as sworn, and as his testimony is brief, we set it forth in full:

"Q. Who first employed you to bring this scire facias proceeding? A. Hart, as I understood it. Q. Did you see him? A. No, sir. Q. Did you have a letter from him? A. I did not. Q. Did you ever see Maggie E. Munhall? A. No, sir. Q. Now, is it not a fact that Mr. Mitchell came to you in reference to it? A. Yes, sir; representing that he had word from Mr. Hart to get somebody to revive the judgment. Q. You mean S. Duffield Mitchell? A. Yes, sir. Q. Did he ask you to have revived any other numerous judgments that were pending against him? A. No, sir; this is the only judgment he spoke of on behalf of Mr. Hart." This was all the evidence introduced.

In plaintiff's motion for a new trial, among other grounds, is the following: "5th. Because the court erred in sustaining said motion to quash and excluding from the evidence before the motion was finally passed upon, the following letter, to-wit:

'Pittsburg, Pa., March 13, 1913.

'Mr. H. T. Harrison,

'Carthage, Mo.

'Dear Sir:

'You are hereby authorized by me to revive the judgment of Maggie E. Munhall v. S. Duffield Mitchell, and take all steps necessary to protect my interests in the matter.

'Yours truly,

'PENNOCK HART.'"

The motion for a new trial being overruled, an appeal was prosecuted in the name of Maggie E. Munhall.

The circuit court evidently concluded that attorney H. T. Harrison was without authority from the person having the right to revive the lien of the judgment. The question for our consideration is whether, under the evidence, the circuit court committed reversible error in sustaining the terre-tenants' motion to quash the writ and dismiss the proceeding.

It is no longer necessary in Missouri for a lawyer to file a warrant of attorney when appearing in litigation of this character. [Sec. 1728, R. S. 1909.] And we are referred by appellant's counsel to cases holding that an attorney at law is presumed to have authority to represent those for whom he purports to act, and, being an officer of the court, is not required to produce a warrant of attorney. [See State ex rel. Ponath v. Muench, 230 Mo. 236, 130 S.W. 282; Miller v. Assurance Co., 233 Mo. 91, 134 S.W. 1003; Valle v. Picton, 91 Mo. 207, 3 S.W. 860; Ring v. Paint and Glass Co., 46 Mo.App. 374; Keith v. Wilson, 6 Mo. 435; Osborn v. U.S. Bank, 9 Wheat. 738, 6 L.Ed. 204; Bonnifield v. Thorp, 71 F. 924.] It is held in some of these cases that an affidavit on mere belief that an attorney has no authority is insufficient to warrant the court in going into the question. We are cited by appellant to the case of State ex rel. Public Schools v. Crumb, 157 Mo. 545, 57 S.W. 1030, 57 S.W. 1030, which, according to the language used, would seem to hold that no one may question the right of an attorney to appear in this character of litigation except the party for whom he purports to act. However, our attention has been called to the case of Miller v. Assurance Co., 233 Mo. 91, 134 S.W. 1003, in which the Supreme Court clearly recognizes the right of a court, when it has reasonable grounds to apprehend that an attorney has no authority, to inquire into the question on its own motion or when properly raised by the opponent. In other words, it recognizes the rule as declared in 4 Cyc. 929 to the effect that a court in its discretion may at any time call for proof of the...