Rhodes v. Rhodes

• Citation: 193 P. 894,108 Kan. 64
• Decision Date: 11 December 1920
• Docket Number: 22,729
• Parties: MARY A. RHODES (CHARLES S. TODD, as Administrator of the Estate of MARY A. RHODES, Deceased, Appellee,) v. R. O. RHODES, Appellant
• Court: United States State Supreme Court of Kansas

193 P. 894

108 Kan. 64

MARY A. RHODES (CHARLES S. TODD, as Administrator of the Estate of MARY A. RHODES, Deceased, Appellee,) v. R. O. RHODES, Appellant

No. 22,729

Supreme Court of Kansas

December 11, 1920

Decided July, 1920

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DIVORCE -- Attorney Acting for Both Husband and Wife -- Case Dismissed--Authority of Attorney to Consent to Reinstatement. Where a husband employs an attorney to represent him in negotiations and litigation relative to a divorce, with instructions to take such steps as may seem desirable to bring about an action by the wife and a judgment for divorce, and the attorney with the full knowledge and consent of each party undertakes to represent both of them, signing the petition as attorney for the plaintiff, his authority to act for the husband does not cease upon a judgment of dismissal for want of prosecution brought about by his illness; and he is still authorized to consent in behalf of the husband to a reinstatement of the case at a subsequent term of court, unless a disability results from the dual representation.

2. SAME--Collusion--Action to Set Aside Decree--Estoppel. A husband who employs an attorney to foster the bringing of an action for divorce by his wife, and to represent him as well as her in such litigation, with instructions to do whatever is necessary to bring about a judgment for divorce, cannot be heard after the rendition of such judgment to attack its validity on the ground that public policy forbids an attorney to represent both parties to a divorce action.

Z. T. Hazen and J. J. Schenck, both of Topeka, for the appellant.

D. H. Branaman, and W. E. Atchison, both of Topeka, for the appellee.

OPINION

MASON, J.:

On March 14, 1918, Mary A. Rhodes brought an action for divorce against R. O. Rhodes, who waived the issuance and service of summons and entered a voluntary appearance, signing a writing to that effect which included an agreement that the case might be taken up and tried at any time without further notice to him. On March 31, 1919, the case was called for trial, and no response being made it was dismissed for want of prosecution. On April 10, 1919, at a new term of court the order of dismissal was set aside and upon a trial the plaintiff was granted a divorce. She died on June 15, 1919. On July 20, 1919, the defendant moved to set aside the judgment on the ground that he had had no notice of the proceedings subsequent to the dismissal. The motion was resisted by the administrator of the plaintiff's estate and was denied, the present appeal being taken from that ruling.

In view of the evidence and the findings of the trial court the following facts must be regarded as established: About February 1, 1918, the defendant, a resident of Kansas City, Mo., came to an attorney of Topeka and asked him to represent both parties in procuring a divorce, saying that he had no grounds for bringing such an action himself and desired one to be brought by his wife, who lived there and who had abundant basis therefor. An arrangement was then made, to which the plaintiff later became a party, that such an action was to be brought by the attorney, who was to appear upon the records as her attorney, while in reality representing the defendant as well, being authorized by him to do whatever might be necessary in order to obtain the divorce. A property settlement and the payment of alimony was agreed upon and the action was brought. Several continuances were had because of the defendant being unable to pay off a real-estate mortgage which by agreement he was to satisfy. The order of dismissal grew out of the fact that the plaintiff and the attorney were both sick at the time the case was reached, and neither had notice of its having been set for trial. As soon as the attorney learned of the dismissal he applied for a reinstatement in behalf of both parties, advising the court of the facts substantially as here stated.

1. The order setting aside the dismissal, having been made at a subsequent term of court, depends for its validity upon the consent of the parties. The defendant asserts that even leaving out of account any question of dual representation and assuming the situation to be the same as though he had been represented by a separate attorney, his attorney could not give an effective consent in his behalf because his authority necessarily ceased with the judgment of dismissal. Language tending to support that view is used in Wawrzyniakowski v. Hoffman & Billings Mfg. Co., 137 Wis. 629, 119 N.W. 350, but we cannot accept it as the expression of a general rule applicable to the facts of this case. Doubtless, the presumption is that an attorney is employed to conduct litigation to judgment and no further and an order dismissing an action may often bring the employment to an end. (6 C. J. 672-673; 3 A. & E. Encycl. of L., 2d ed., 329.) But there can be no hard and fast rule on the subject. Much must necessarily depend upon the particular circumstances and the character of the employment. (For an illustration see Macpherson v. Bacon's Executor, 180 Ky. 773, 785, 203 S.W. 744.) If an attorney is employed to endeavor to attain a certain result, and through some accident or inadvertence, or even through neglect or oversight on his part, an order is made dismissing an action brought by him for the purpose, it cannot be that a new employment is necessary to authorize him to ask for its reinstatement. And if the client is a defendant who has employed counsel to represent him for the purpose of having an affirmative judgment rendered, the situation is not essentially different. If the defendant ...