Wilson v. Carroll
| Decision Date | 01 November 1926 |
| Docket Number | 11534. |
| Citation | 250 P. 555,80 Colo. 234 |
| Parties | WILSON v. CARROLL. |
| Court | Colorado Supreme Court |
Rehearing Denied Nov. 22, 1926.
Department 2.
Error to District Court, Rio Grande County; Jesse C. Wiley, Judge.
Action by W. Scott Carroll against Tunis V. Wilson. Judgment for plaintiff, and defendant brings error.
Affirmed in part, and in part reversed and remanded, with directions.
Jesse Stephenson, of Monte Vista, for plaintiff in error.
James P. Veerkamp, of Monte Vista, for defendant in error.
Carroll had verdict and judgment against Wilson for $2,737.86 attorney's fees for services in foreclosing a trust deed in court. Wilson brings error.
Wilson held notes and trust deed by certain persons named Cochran for $25,000; also a note for $684 signed by them, which was given for defaulted interest and taxes on the other notes and was secured by chattel mortgage. The $25,000 note stipulated for 10 per cent. attorney's fees in case of collection by an attorney. Wilson employed Carroll, who was an attorney at law, to collect by foreclosure and agreed to pay him such amount as the court might allow upon such a stipulation. Carroll foreclosed by suit; the decree included the $684,--that is, did not credit the chattel mortgage note upon the amount of the trust deed notes. It allowed $2,737.86 balance of attorney's fee, but, by a scrivener's error, the entry of decree showed a fee of only $12.50; upon foreclosure sale, however, the attorney advised his client to bid in the land for the full amount, principal, interest taxes, and costs.
Nearly two years after, without notice to the client, Carroll had the decree amended to show $2,737.86 instead of the $12.50, and thereupon brought the present suit for his fee. The defenses were: First, that the amendment was illegal. Second, that the attorney had been guilty of neglect and incompetence so that (a) there was not sufficient record of the proper service to show good title in the purchaser (b) that by his advice $684 had been included in the bid at foreclosure sale when it was well secured by chattel mortgage and might have been collected in that manner; (c) that the notice of foreclosure sale was insufficient and void. Third, that certain instructions were erroneous.
First, as to the amendment. It is the duty of the court to amend its record to conform to the truth. 1 Black on Judgments, § 32. Sproul v. Monteith, 66 Colo. 541, 185 P. 270; Sawdey v. Pagosa Lumber Co., 78 Colo. 185, 240 P. 334. It is not stated that the amendment does not conform to the truth.
Second, as to service. (a) All the defendants in the foreclosure suit acknowledged service of summons in writing. It is not claimed that this acknowledgment is not sufficient (Code 1921, § 44), but it is claimed that the proof of this service in the record is insufficient under Code 1921, § 49, subd. 4, which provides that proof of the written admission of defendant shall be in the certificate of an officer authorized to serve summons or the affidavit of some credible witness, and it is claimed there is no such proof. There is no question but that the service by acknowledgment was sufficient; therefore the court had full jurisdiction. Sawdey v. Lumber Co., supra. Wilson, however, had a right to have the record show sufficient service. If the affidavit of written acknowledgment is wanting or insufficient the record nevertheless sufficiently shows service in this case, because the decree finds that all the defendants were properly served. Since there is no question that there was an actual acknowledgment of service, and since the decree finds sufficient service, there is no error in this respect. This is a matter, if of any importance, that can now be corrected by the affidavit of any credible witness to the handwriting of the various defendants who acknowledge service.
(b) Under the evidence on behalf of Carroll, we cannot say that his advice to Wilson to include $684 in his bid...
To continue reading
Request your trial