Vallé v. Picton

• Decision Date: 24 June 1884
• Citation: 16 Mo.App. 178
• Parties: ISABELLA H. VALLÉ, Respondent, v. JOHN R. PICTON, Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 178

ISABELLA H. VALLÉ, Respondent,

v.JOHN R. PICTON, Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 24, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Reversed and remanded.

JOHN M. HOLMES and E. A. B. GARESCHÉ, for the appelant: A defendant is not bound to answer a suit begun without the plaintiff's authority.--Weeks on Attorneys, sect. 200. If the attorney, after a motion to dismiss is made, and after a reasonable notice of it, fails to show his authority the court shall dismiss the suit.--Weeks on Attorneys, sect. 214, p. 370; Turner v. Caruthers, 17 Cal. 433; McKernan v. Caruthers, 4 How. (Miss.) 333. A promise is a sufficient consideration for another promise.--1 Pars. on Con. bottom p. 470; s. c. 9 Bing. 68; Mississippi Bank v. Sabin, 48 Vt. 329; Moss v. Green, 41 Mo. 389.

MCKEIGHAN & JONES, for the respondent.

LEWIS, P. J., delivered the opinion of the court.

The petition contains two counts on promissory notes, and one for money paid by the plaintiff to the defendant's use. The verdict and judgment were for the plaintiff on all the counts.

The amended answer alleges that the defendant's former wife, a daughter of the plaintiff, had sued him for divorce, in which suit he had filed an answer and cross-bill. That, during the pendency of that proceeding, the present plaintiff and defendant entered into an agreement, by which the plaintiff was to cancel and surrender to the defendant the notes here sued on, and was to release him from all liability on account of the matters charged in the petition, and was further to pay the defendant the sum of $8,500 in cash, upon the execution of a conveyance by him to his said wife, at the termination of said suit--whether the decree rendered therein should be in favor of one party or the other--of all his marital rights, claims, and demands, and of all rights, claims, and demands, of whatsoever nature, in and to the property of his said wife. That in accordance with said agreement, upon the termination of the divorce suit, the defendant executed and delivered the conveyance stipulated for, and the plaintiff paid him the sum of money promised; but through accident, mistake, or oversight, the said notes and evidences of indebtedness were not cancelled or surrendered, as had been agreed upon. A reply put these allegations in issue.

On May 12, 1882, the defendant filed his motion for a dismissal of the cause, “because the same has been instituted and is prosecuted without the knowledge, consent, or authority of the plaintiff.” This motion was supported by the defendant's affidavit to the effect that “he has good reason to believe and does believe, and does so aver, that the above entitled cause has been begun by Henry A. Clover, the attorney herein, without the knowledge, sanction, or authority of the plaintiff herein, and against her wishes. And he does believe, and does so aver, that if advised thereof, she would not sanction the same.” No other affidavit or proof was offered in support of the motion, nor was any leave asked for or given, to file additional proofs. On the same day the motion was overruled. There were some irregularities in this proceeding, but on the whole we do not perceive any error which would justify a reversal. By Revised Statutes, section 3558, “motions in a cause filed in term, shall be filed at least one day before they may be argued or determined.” The law, on its face, imposes a duty of diligence on the party filing the motion. At the same time it secures to both parties the benefit of one entire day's preparation for the argument and submission. If the position of the case on the docket will admit of the statutory delay it would be a wrong against the mover, as well as against the adverse party, to pass upon the motion without that delay, unless this is consented to at the time. But if the motion be manifestly insufficient on its face and not entitled to serious consideration, by reason of its inherent irrelevancy or frivolousness, there can be no such error as would be fatal to a judgment, in disposing of it at any time. The customary rule in practice requires that affidavits or other proofs in support of a motion must be filed with it; otherwise, leave must be obtained at the time to file them within a specified time afterwards. If o such leave be given, the motion must be disposed of as it stands, with its accompanying proofs, at the time of filing. The motion and affidavit, in the present instance, were wholly insufficient for the object sought. There is a legal presumption arising from professional obligations resting upon every attorney in good standing, and from the oath he has taken, that he will not abuse his privileges by bringing any person into court as a party without authority from that person so to do. This presumption, to be effectually rebutted, must be met by something more than mere belief--however honestly entertained, and upon whatsoever undisclosed reasons seeming sufficient to the believer--that the attorney has been guilty of a professional malfeasance. The “suitable suggestion” referred to in Keith v. Wilson (6 Mo. 439), must be some showing of specific facts, from which the court itself may be induced to doubt the attorney's authority to appear for the party. In that case, as well as in the others cited, there was a very complete showing of such facts. In the present case the motion to dismiss, as presented, was wholly insufficient on its face, and must have been overruled, whenever and however reached.

We here copy from the statement filed by the respondent, so much of the testimony as seems to be material to our present purpose:--

“John R. Picton, the appellant, testified substantially that during the pending of the divorce suit he had no conversation with Mrs. Valle. Had conversation with Judge Clover, attorney for his wife, Mrs. Zoe Vallé Picton, in her suit for divorce against the witness at the office of appellant in May, 1881. Judge Clover stated (says the witness) that if he would withdraw certain accusations in the pleadings, that his client's (Zoe Vallé Picton) friends would assist him financially. Witness referred Judg...