Nichells v. Nichells

• Decision Date: 27 June 1895
• Court: North Dakota Supreme Court

64 N.W. 73

5 N.D. 125

CLINTON G. NICHELLS v. MINNIE B. NICHELLS

Supreme Court of North Dakota

June 27, 1895

Appeal from District Court, Richland County; Lauder, J.

Action for a divorce by Clinton G. Nichells against Minnie B Nichells. From an order denying a motion to vacate a decree for plaintiff, defendant appeals.

Reversed.

Reversed and remanded.

Ball & Watson and I. J. Ringolsky, for appellant.

The judgment was taken against appellant through surprise, and under section 4939, Comp. Laws, it was abuse of discretion to refuse her petition for leave to come in and defend. Simpkins v. Simpkins, 36 P. 759; Herbert v Lawrence, 18 N.Y.S. 95; Loree v. Reeves, 2 Mich. 133; Comstock v. Whitworth, 75 Ind. 129. The power of the court to open up judgments is a highly remedial one, and should be liberally exercised in furtherance of justice. Buell v. Eurich, 24 P. 644; Griswold v Lee, 47 N.W. 955; Baxter v. Chute, 52 N.W. 379; Pierson v. Drobax, 34 P. 76; Beard v. McAllester, 24 P. 263; Taylor v. Trumble, 49 N.W. 375; Black v. Hurlbert, 40 N.W. 673; Dixon v. Lyne, 10 S.W. 469. In cases where default is caused by the attorneys negligence the relief will not be denied. Loree v. Reeves, 2 Mich. 133; Green v. Stobo, 20 N.E. 850; Robbins v. Kountz, 44 Wis. 558; Doherty v. Bank, 9 P. 112. The public has an interest in the result of suits for divorce, and for this reason courts should be liberal in relieving parties from judgments obtained against them by default. Cottrill v. Cottrill, 83 Cal. 457; Bell v. Peck, 37 P. 776. The withdrawal of her answer by the attorney was not a withdrawal of her appearance, nor could he without her authority withdraw her appearance. Eldred v. Bank, 84 U.S. 545; Creighton v. Kerr, 87 U.S. 8. If defendant is entitled to this relief, the marriage of plaintiff to another woman furnishes no reason for its denial. Yorke v. Yorke, 3 N.D. 343; Denton v. Denton, 4 How. Pr. 221; Simpkins v. Simpkins, 36 P. 759; Olmstead v. Olmstead, 43 P. 67; Everett v. Everett, 18 P. 637; Allen v. Maclellan, 51 Am. Dec. 608; Rush v. Rush, 46 Ia. 648; Holmes v. Holmes, 63 Me. 420; Caswell v. Caswell, 24 Ill.App. 548; Stephens v. Stephens, 62 Tex. 337.

W. E. Purcell, and McCumber & Bogart, for respondent.

The court had no authority to open up its decree for error in ordering judgment. Grant v. Schmidt, 22 Minn. 1; Aetna Life Ins. Co. v. McCormick, 20 Wis. 265; Bank v. Moss, 6 How. 31; Donnam v. Springfield Hardware Co., 62 F. 110; Edwards v. City, 14 Wis. 27. The withdrawal of the answer and appearance of his client is within the implied scope of an attorneys power. Gaillard v. Smart, 6 Cow. 385; Weeks on Attorneys § 218; Tomson v. Kershing, 86 Ind. 303; Bray v. Doheny, 40 N.W. 262; McLaurin v. McNamara, 55 Cal. 508; Moulton v. Bonner, 115 Mass. 36; Holmes v. Rogers, 13 Cal. 191; Bingham v. Supervisors, 6 Minn. 82; Rodgers v. Greenwood, 14 Minn. 256; Whatever adverse proceedings the attorney may take are to be considered so far as they effect the defendant in the suit as approved in advance by the client, and therefore as his act, even though they prove to be unwarranted by law. Foster v. Wiley, 27 Mich. 244. Whether the attorney is faithful to his trust is a matter between him and his client. Henck v. Todhunter, 16 Am. Dec. 300; Tomson v. Kershing, 86 Ind. 303; Unless there is ground to charge the adverse party with fraud or collusion, the client must abide by the steps taken by the attorney and seek his remedy for the injury sustained in consequence of the attorneys acts. Lawson v. Bettson, 12 Ark. 401; Sampson v. Ohleger, 22 Cal. 200; Bethel v. Carmock, 2 Md.Ch. 143; Chambers v. Hodges, 23 Tex. 104. The withdrawal of answer and appearance by defendants counsel, left the case as if no appearance had been put in. Graham v. Spencer, 14 F. 603; The Dubois v. Glaub, 52 Pa. 238; Creighton v. Kerr, 20 Wal. 8.

WALLIN C. J. CORLISS, J. (concurring.)

OPINION

WALLIN, C. J.

The record in this action presents a state of facts which, so far as they are important to a decision of the question involved may be stated as follows: The action is for a divorce from the bonds of matrimony, and was commenced by the personal service of a summons and complaint, which, after an order of publication was obtained, was made upon the defendant at Kansas City, Mo., the place of the defendant's residence, on February 3, 1894. On April 14, 1894, the defendant by her attorney, Frank Gray, Esq., appeared in the action and served an answer to the complaint. The plaintiff's ground of action, as stated in the complaint, was cruel and inhuman treatment. The marriage between the parties was celebrated at Kansas City in 1883, and two children were born of the marriage, both of whom were living with their mother at Kansas City when the action commenced, and ever since have been in her custody. The answer of the defendant denied the allegations of the complaint, and alleged that the plaintiff was not a resident of North Dakota in good faith, but was and is a resident Kansas City aforesaid; that plaintiff deserted the defendant in September, 1893, leaving the defendant and said children without means of support, and that, after such desertion, plaintiff went to the State of North Dakota with one , with whom plaintiff now is and ever since has been living in open adultery, said being a married woman, and not the wife of the plaintiff. On the 11th day of May, 1894, a document signed by the defendant's said attorney was filed with the clerk of the District Court in which the action was pending, which read as follows: "State of North Dakota, County of Richland--ss.: In District Court, Fourth Judicial District. Clinton G. Nichells, Plaintiff, vs. Minnie B. Nichells, Defendant. To W. E. Purcell, Attorney for the Above-Named Plaintiff: You are hereby notified that, in the above entitled action, the undersigned withdraws his appearance for the above-named defendant, Minnie B. Nichells and withdraws the answer by him interposed on behalf of said defendant, for the reason that the undersigned was retained to appear in said action in the month of February, 1894; that he furnished the defendant with a copy of the summons and complaint in said action, and, during said month of February, demanded of the defendant that he be put in communication with her attorneys, if any she had, in the City of Kansas City, Missouri; that he was instructed by the defendant to prepare and serve the said answer in said action, and to make a draft on the defendant's representatives for his retainer in said action; that he prepared and served said answer in this action within the time by law prescribed after the service of the summons and complaint herein upon the defendant; that he demanded from the defendant and her representatives in said Kansas City, Missouri, the payment of a reasonable retainer for his appearance in said action on or about the 14th day of April, 1894; that defendant and the said representatives have failed, neglected, and refused to pay the undersigned any sum whatever as a retainer or for his fees in said action; that the representative of said defendant in Kansas City, Missouri, has been notified long prior to this date that, unless the retainer of the undersigned was paid, he would have nothing further to do with this action.--Dated May 8th, 1894. Frank Gray, Defendant's Attorney." On the same day (May 11, 1894) the trial court made and filed its findings of fact and conclusions of law, and directed a judgment to be entered dissolving the bonds of matrimony existing between the parties, whereupon said judgment was then formally entered in the judgment book. Preceding said findings of fact was the following recital made by the trial court: "The above-entitled action having been brought on for trial before the court on this 11th day of May, 1894, and it appearing to the satisfaction of the court that the summons and complaint herein were personally served upon the defendant at Kansas City, in Jackson County, State of Missouri, on the 3rd day of February, 1894, the same being in lieu of service by publication, which had been theretofore ordered by this court by an order herein filed; and the defendant having appeared by Frank Gray, Esq., her attorney, and having answered herein, and served her answer to the plaintiff's complaint upon the attorneys for the plaintiff on the 14th day of April, 1894; and the defendant having on the 8th day of May, 1894, by a stipulation in writing herein filed, withdrawn her appearance and her answer in said action, and being, therefore, on this day, in default,--and the court having proceeded to hear the evidence adduced on the part of the plaintiff in support of the allegations of his complaint, and having duly considered the same, and being fully advised in the premises, now makes and files the following findings of fact." The defendant, through her other attorneys, Messrs. Ball & Watson, of Fargo, N.D., made application to said District Court in July, 1894, and obtained an order to show cause before said court why said judgment should not be vacated, and the defendant be allowed to interpose a defense to the cause of action alleged in the complaint; said application being based upon a proper affidavit of merits and other affidavits, and a proposed amended answer to the complaint, which embodied, in addition to the defenses stated in the original answer, other defensive matter. After several adjournments, a hearing was had upon the order to show cause, and upon October 31, 1894, the trial court entered its order discharging the order to show cause and denying the application to vacate said judgment, and refusing to allow the defendant to interpose her proposed amended answer. The case is brought to this court for review on appeal from...