Sayer v. Lee
| Decision Date | 08 March 1918 |
| Docket Number | 4290 |
| Citation | 40 S.D. 170,166 N.W. 635 |
| Parties | ROSE E. SAYER, Plaintiff and respondent, v. FRED N. LEE, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Marshall County, SD
#4290--Affirmed
Byron Abbott
Attorneys for Appellant.
M. J. Staven, and Frank McNulty
Attorneys for Respondent.
Opinion filed March 8, 1918
This is an appeal from an order fixing the time within which to serve notice of intention to move for a new trial and to prepare and settle the record in this case. The case was tried in Marshall county and judgment entered on the 1st day of July, 1914. The verdict and judgment were in favor of plaintiff, but she was dissatisfied with the amount of the verdict and directed her attorney, who prosecuted and tried the case, to take the necessary steps to secure a new trial, or to appeal the case to this court, if necessary. This her said counsel promised to do, and, from time to time thereafter, assured plaintiff he was doing. Plaintiff relied upon said counsel to proceed with this case and believed that the matter was being properly attended to until about the middle Of April, 1917, when she learned, by inquiry of the clerk of courts, that no move of any kind had ever been made by her said attorney to secure a new trial or to prepare or settle the said record. Upon learning this fact, she at once employed other counsel, who applied to the court to fix a new time within which plaintiff might serve and file her notice of intention to move for a new trial and to cause said record to be settled. The application was granted, and defendant appeals.
The only question presented by appellant is that the showing Made by respondent is not sufficient, under the provision's of section 151, Code of Civil Procedure, to warrant the court in relieving respondent from her default. The reason why the necessary steps to procure a new trial were not taken within the time fixed for that purpose by statute is the negligence of respondent's counsel, and it is appellant's contention the such negligence should be imputed to respondent. As a rule, a client is bound by the acts of his attorney; but this is true only so far as such acts relate to the management of business instructed to an attorney or to the various steps taken by him in the transaction of his client's business. Where an attorney acts in good faith within the scope of his authority in representing his client, his acts, both of commission and omission, will be regarded as the acts of his client, and the negligence of the attorney will be regarded as the negligence of the client. 2 R. C. L. 965. But this rule does not apply where the attorney has acted in bad faith or intentionally neglects his client's business. In this case there was a total failure on the part id the attorney to take any steps whatever to attend to the business instructed to his care. While he promised to proceed with the motion for a new trial and assured responde...
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