Simpkins v. Simpkins

• Decision Date: 07 May 1894
• Parties: SIMPKINS v. SIMPKINS.
• Court: Montana Supreme Court

36 P. 759

14 Mont. 386

SIMPKINS v. SIMPKINS.

Supreme Court of Montana

May 7, 1894

Appeal from district court, Deer Lodge county; D. M. Durfee, Judge.

Action by George W. Simpkins against Alice J. Simpkins for divorce. From an order overruling defendant's motion to set aside a judgment by default, she appeals. Reversed.

This is an action for divorce, commenced by filing complaint March 23, 1892, in the third judicial district court in and for Deer Lodge county, the plaintiff alleging that he was a resident of that county. It appears that defendant was at the city of La Crosse, Wis., at the time of the commencement of the action. The service of summons was by publication, and by mailing a copy thereof to defendant at La Crosse. Demurrer was filed, April 22d, by H. R. Whitehill, attorney for defendant. The demurrer was heard and overruled August 13th. No further pleading being filed by defendant, on August 14th her default was entered for failure to answer, and proof was heard upon the part of plaintiff, and judgment dissolving the bonds of matrimony between plaintiff and defendant was made and entered. On September 22d a motion was made by defendant to set aside the judgment, open the default, and allow her to defend the action. On that motion an answer was tendered which apparently pleaded a good defense to the cause of action set up in the complaint. Her motion was by the court denied. From this order she appeals.

It will be necessary to state somewhat fully the facts upon which the motion was based. The defendant filed her own affidavit setting forth what she claims was her diligence in attempting to defend the case, and she annexed to said affidavit the correspondence between her attorney, W. S. Burroughs, in La Crosse. Wis., and H. R. Whitehill, in Deer Lodge, Mont. Her affidavit was not contradicted except in one matter, which is noticed in the opinion below. From this affidavit, and the letters annexed, the following facts appear: Immediately upon receipt by her, through the mail, of a copy of the summons she went to W. S. Burroughs, an attorney in La Crosse, Wis and employed him as her counsel. It appears that she was cognizant of the whole correspondence which afterwards took place between Mr. Burroughs and Mr. Whitehill. Mr. Burroughs at once (on April 19th) wrote to Mr. Whitehill (having obtained his name from the legal directory), and stated the fact of the commencement of the action, and inquired whether Mr. Whitehill would appear in the case for defendant, as local attorney. In this letter he informed his correspondent of the condition of defendant and the number of her children and something of her circumstances and marital history. To this letter Mr. Whitehill sent the following answer: "Deer Lodge, Montana, April 21st, 1892. Wm. S. Burroughs, Esq.--Dear Sir: Your letter of the 19th inst. is just received. I will look up the complaint in Simpkins vs. Simpkins, and put in an appearance for Mrs. Simpkins so as to prevent a default being taken against her. In case of a contest in the matter, I shall charge $250.00. A portion of that, however, can be collected from the husband. In case we can make a settlement and procure an allowance for Mrs. S.'s support without trial, I shall charge $100.00. If Simpkins is so very determined to have the divorce, it is very likely that Mr. Titus will make some offer here when he finds an appearance has been made. In the mean time you might notify me of the facts as to the desertion, which you say is the ground alleged for divorce, and also what amount Mrs. Simpkins would accept as alimony. Yours, very truly, H. R. Whitehill." (Mr. Titus was plaintiff's attorney.) In accordance with this letter of April 21st, Mr. Whitehill on the next day filed a general demurrer on the part of defendant. To this letter Mr. Burroughs, on May 2d, replied substantially as follows: That his client would not be able to pay the amount charged by Mr. Whitehill. He then asks whether he cannot go on with the case, and get his fee by virtue of an order of the court for counsel fees against the plaintiff. He discusses the procedure for obtaining such order quite at length. Then he sets forth the facts of defendant's defense. The cause of action set up in the complaint is desertion solely. In this letter Mr. Burroughs set out fully the facts which he claims showed that there was no desertion. He states that such facts can be proved, and says that depositions will be taken at La Crosse to prove the same. He thus furnishes the Deer Lodge counsel the material for preparing an answer. As to what the defendant would be willing to accept as alimony, her La Crosse counsel, in this letter, says: "I think, as she now looks at the matter, if he would pay you, and send to her $1,000.00, she would let him go. Have the kindness to write me that you have appeared and prevented default." In reply to this letter of Mr. Burroughs, Mr. Whitehill, on May 26th, writes, and, after apologizing for some delay, says: "The case stands on a general demurrer, which Mr. Titus does not seem anxious to get rid of, so there has been no hurry. I shall look out for the case, and see that no advantage is taken of Mrs. Simpkins, and in the course of a couple of weeks, when this term of court adjourns, will prepare the answer necessary, and send you for Mrs. Simpkins to verify." Pursuant to this letter, on July 7th, Mr. Whitehill sends the following: "Wm. S. Burroughs, Esq.--Dear Sir: Inclosed I send you answer in Simpkins vs. Simpkins, for verification before a notary public. Our next term of court begins on the 18th inst. Please return the answer at once. at the time of filing I will have citation issued for Simpkins to show cause, if any, why alimony pendente lite should not be allowed, and have an order made for expenses and attorney's fees. Yours, truly, H. R. Whitehill." Upon receipt of this answer, Mr. Burroughs had it verified at once, and on July 11th forwarded it to Mr. Whitehill. On July 9th, Mr. Whitehill advised Mr. Burroughs of some negotiation of compromise as to alimony, talked of between him and Simpkins' attorney. To this letter Mr. Burroughs replies that his client cannot accept a $1,000 alimony; that she has no means of her own, and has two minor children, one 17, and one 19, years of age. He says that the defendant wishes to resist the divorce, but, if it is to be granted, she cannot get along upon $1,000, and makes the following proposition, which she, through Burroughs, in this letter, authorizes Mr. Whitehill to make, namely, that she will accept $2,000 for herself and the payment of Mr. Whitehill's fees, or the plaintiff may pay her $1,000, and secure her in some way the payment of $25 a month towards the support of her daughter, who is 17 years old, until she shall become of age, which in Wisconsin is 21 years. To this letter Mr. Whitehill replies, on July 24th, as follows: "Deer Lodge, Montana, July 24th, 1892. Wm. S. Burroughs, Esq.--Dear Sir: I am surprised at your letter of the 16th inst. stating that Mrs. Simpkins now demands $2,000. Some time ago Mr. Titus came to me and offered $500 and $25 per month alimony during the minority of the youngest child. (Full age for females here is 18 years.) I told him that I could not settle on such terms, but that, if he would pay Mrs. Simpkins $1,000 cash, and my fee, I would allow him to enter judgment. I gave him time, at his request, to see Simpkins. He came back in a few days after, and said that Simpkins could only raise $500; that he would pay her that amount only, and no alimony, but would pay my fee. I told him again no, but that, if he would pay Mrs. S. $1,000, I would reduce my fee to $100, making $1,100, and costs of court. At that time Mrs. Simpkins' answer had not been returned, so I told Mr. Titus that, unless my proposition was accepted by the 23rd instant, I would file the answer, and cite Simpkins to appear and answer why an order of court should not be made compelling him to pay attorney's fee and alimony pendente lite. He agreed to see Simpkins again, but said: 'I know Simpkins has not got that much money, but he may be able to borrow...