Rice v. Bennett

• Decision Date: 25 June 1912
• Citation: 137 N.W. 359,29 S.D. 341
• Parties: RICE v. BENNETT.
• Court: South Dakota Supreme Court

137 N.W. 359

29 S.D. 341

RICE v. BENNETT.

Supreme Court of South Dakota

June 25, 1912

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by Hiram Rice against Irving Bennett. From a judgment dismissing the complaint on its merits and an order sustaining defendant's motion for a directed verdict plaintiff appeals. Affirmed.

U. S G. Cherry (Frank D. Williams and Herbert Abbott, of counsel) for appellant.

C. H. Winsor, for respondent.

SMITH J.

Appeal from circuit court of Minnehaha county. The plaintiff, Rice, as assignee, of three judgments, rendered in the district court of Nance county, Neb., commenced an action against Bennett, defendant and respondent, to recover sums aggregating $2,180.11, with interest from February 26, 1906, the date of the judgments in the Nebraska court. The answer was a general denial, and further alleged that defendant had never been served with process in the actions in Nance county, and had never voluntarily appeared therein. Trial April 25, 1911, before a jury. At the conclusion of all the evidence, each party moved for direction of a verdict. Plaintiff's motion was denied, and the motion of defendant sustained. Final judgment dismissing the complaint on its merits was entered May 3, 1911. This appeal is from the judgment, and from the order sustaining defendant's motion for a direction of a verdict.

Respondent's counsel discusses in his brief certain propositions relating to the procedure adopted in settlement of the statement of the case upon motion for a new trial; but, in view of the conclusion reached upon the merits, it is unnecessary to consider the procedure. The motion for a new trial specified as grounds: First, insufficiency of the evidence to justify the verdict; second, that the verdict was against law; third, errors of law occurring at the trial and excepted to by the plaintiff. Appellant contends that the uncontradicted evidence establishes conclusively that C. E. Spear had authority to appear and did appear as attorney for defendant, I. I. Bennett, in the district court of Nance county, Neb.; that said court thereby acquired jurisdiction of the person of defendant and of the subject-matter of the actions; that the evidence is uncontradicted and conclusive that plaintiff, in the actions pending in the district court of Nance county, believed and relied upon the fact that said Spear had authority to appear for defendant therein; that the plaintiff in this action, Hiram Rice, believed said Spear had authority to appear as attorney for defendant in said actions, and, relying upon such appearance, has acquired for a valuable consideration the three judgments so rendered against defendant; and that defendant in this action should be estopped to assert that Spear had no such authority. The record discloses that the actions in the Nebraska court were upon certain promissory notes purporting to have been executed by the defendant, Bennett, upon which the plaintiff Rice became accommodation indorser; that Rice was not made a party to said actions, but after entry of the judgments all three were assigned to him.

The main controversy upon this appeal is as to the authority of Spear, an attorney residing at Albion in Boone county, to waive issuance and service of summons in the actions and enter the voluntary appearance of defendant, Bennett. We shall consider these assignments as they are discussed in appellant's brief. The vital question is whether the district court of Nance county, Neb., acquired jurisdiction by the voluntary appearance of defendant, Bennett. It is not claimed there was any service or attempted service of process upon the defendant personally. At the trial plaintiff offered in evidence duly authenticated copies of the proceedings, and the three judgments alleged in the complaint, which disclosed that a verified complaint in each of said actions was filed in the district court of Nance county, on the 5th day of January, 1905, and that in each of said actions one C. E. Spear, an attorney at law residing in Albion, Neb., on September 9, 1905, filed a written instrument, as follows: "Comes now the defendant, I. I. Bennett, and enters his voluntary appearance in the above-entitled action, and waives the issuance of service and summons in the same. I. I. Bennett, Defendant, by C. E. Spear, His Attorney." An answer in each of said actions was filed by Spear on December 19, 1905. The answer so filed in each case admits the execution of the notes sued upon, coupled with a general denial. The judgments were entered on February 26, 1906, and each contained the following recitals: "This cause came on to be heard, and the said defendant, I. I. Bennett, having failed to answer, defend, or otherwise appear to the petition of plaintiff, and being three times solemnly called in open court, came not nor any one for him. A default is hereby entered against said defendant." Unless Spear had authority to waive issuance and service of process, or defendant is estopped from denying it, it is clear that the court was without jurisdiction of the person of the defendant, Bennett, and that the judgments are void.

It seems to be generally held that, where an attorney assumes to acknowledge service of a summons or to waive it, the court will presume, in the absence of proof to the contrary, that he was authorized specially so to do. Backus v. Burke, 63 Minn. 272, 65 N.W. 459; Hendrix v. Fuller, 7 Kan. 331; Taylor v. Sutton, 6 La. Ann. 709; Felder v. Johnson, 1 Bailey (S. C.) 624; Marling v. Robrecht, 13 W.Va. 440; Northern C. R. Co. v. Rider, 45 Md. 24. This presumption is founded upon the assumption that attorneys as officers of the court will not be presumed to have exceeded their authority, and will be presumed to have been specially authorized to acknowledge or waive service of summons, by those whom they assume to represent. This assumption, however, is not in itself evidence of the fact of special authority, and is only operative in the absence of evidence, and, when the evidence which proves or disproves special authorization is before the court, the assumption itself is eliminated. It appears from the record that the defendant, Bennett, at some time prior to these proceedings, was for a time a resident of the state of Nebraska, but had become a nonresident of the state, and at the time of these proceedings was a resident of the state of South Dakota. It appears, also, that one H. C. Vail, an attorney residing at Albion, Neb., represented the plaintiff in all three actions, in the Nebraska court. It appears further that on or about August 29, 1905, Attorney Vail met defendant, Bennett, at Omaha, and had a conference with him concerning the claims or proposed actions in which complaints had been filed on the 5th of January, 1905, but in which process had not been served on Bennett. It further appears that, during such conference, the defendant, Bennett, in the presence of Vail, wrote a letter to Mr. Spear, the attorney at Albion, Neb., which was sealed and delivered to Spear by Vail about that date. This letter was as follows: "Omaha, Aug. 29, 1905. Mr. C. E. Spear, Albion, Neb.-Dear Sir: I am defendant in some cases at Fullerton brought by Albion National and Sticklen, and I want you to look after my interests at Fullerton. Yours Resp. I. I. Bennett. Address Omaha."

In response to this letter, Spear on August 30, 1905, wrote Bennett at Omaha, Neb., a letter, which was received by him, as follows: "Dear Sir: I am in receipt of your favor of Aug. 29th, relative to certain actions now pending in Fullerton. I will enter an appearance in these cases as your attorney, and will take such steps as I consider for your best interests. As soon as I have examined the papers, I will write you again as to what course I think you had better pursue. Very truly yours, C. E. Spear." In response to this letter, Bennett wrote Spear, under date of September 9, 1905, as follows: "Dear Sir: Your letter to hand and note that you will advise me in a few days what course you will pursue in the cases at Fullerton. I am very anxious to hear from you at the earliest possible date."

Under date of September 14, 1905, Spear wrote Bennett at Omaha, Neb., as follows: "Replying to yours of the 9th, will say that I have been informed that you desire me to make appearance in several cases now pending in Nance county against you. This is all the information I have further than the letter that you sent me by Mr. Vail. I understand that you do not care to resist the claim of the plaintiff, but enter your appearance in the cases for a different purpose. I would be pleased to hear from you as to just what your position in these cases is, and just what you expect to do relative to them. I am willing to follow any course you may suggest but am so far left in the dark in relation to the cases. I have failed to receive from Mr. Vail copies of the papers filed in this case, and until I see them it will be impossible for me to suggest anything." Bennett testified that he does not remember receiving this letter.

On September 27, 1905, Spear wrote to Bennett at Omaha, Neb., as follows: "Dear Sir: I shall be in Omaha all of next Thursday, Oct. 5, and would be pleased to know where I can meet you at that time. Please let me hear from you at your earliest convenience."

In response to this letter, Bennett wrote Spear on October 2, 1905, as follows: "Dear Sir: If nothing interferes I will meet you at the Paxton Hotel, Thursday noon. (12, 12-15)."

Spear left for Omaha without receiving this letter, and on October 6, 1905, wrote Bennett: "Dear Sir: I have just returned from Omaha, where I have been the past three days. I left there the evening of the 3d and I find your letter did not reach here...