Woods v. Walsh
| Citation | 75 N.W. 767,7 N.D. 376 |
| Decision Date | 22 April 1898 |
| Court | United States State Supreme Court of North Dakota |
Appeal from District Court, Grand Forks County; Templeton, J.
Action by James M. Woods against George H. Walsh and Laura M. Walsh to foreclose a mortgage. From a judgment dismissing the action, plaintiff appeals.
James B. Eaton, (R. A. Eaton, of counsel,) for appellant.
Champerty and maintenance are not recognized under the New York practice from which our code and practice are taken. Sedgwick v. Stanton, 14 N.Y. 280; Voorhees v Dorr, 51 Barb. 580; Fowler v. Callan, 102 N.Y 395, 7 N.E. 169; Rev. Codes, § § 7001, 7009. Neither in California or other states. Mathewson v Fitch, 22 Cal. 94; Hoffman v. Vallejo, 45 Cal. 564; Reece v. Kyle, 49 Ohio St. 475, 31 N.E. 747; Brown v. Bigne, 28 P. 11; Kutcher v. Love, 36 P. 152; Newkirk v. Cone, 18 Ill. 449; Fetrow v. Merriwether, 53 Ill. 275; Wright v. Tibbitts, 91 U.S. 252; Roberts v. Cooper, 20 How. 483; Taylor v. Bemis, 110 U.S. 42, 3 S. C. Rep. 441; Courtright v. Burnes, 13 F. 317; Schomp v. Schneck, 40 N.J.L. 195; Richardson v. Rowland, 40 Conn. 565; Danforth v. Streeter, 28 Vt. 490. In cases where champerty is a proper defense, it must be pleaded and proved. McMullen v. Guest, 6 Tex. 275; Brumback v. Oldham, 1 Idaho, 710; Moore v. Ringo, 82 Mo. 468; Allison v. Railroad, 42 Ia. 280. An agreement to be champertous must have been made before the suit was commenced, and be the moving cause of it. Moody v. Harper, 38 Miss. 599. The Federal Court in Tennessee declines to follow the state statute against champerty. Byrrie v. Ry. Co., 55 F. 44.
J. B. Wineman, for respondents.
When the fact appears that an action is being prosecuted upon a champertous agreement the action will be dismissed. Barker v. Barker, 14 Wis. 131; Kelly v. Kelly, 56 N.W. 637; Douglas v. Wood, 1 Swan. (Tenn.) 395; Hunter v. Lyle, 8 Yerg. (Tenn.) 142; Greenman v. Cohie, 61 Ind. 201; Board v. Jameson, 86 Ind. 154; 4 Enc. Pl. and Pr. 368; Peck v. Henrick, 17 S. C. Rep. 927; McPherson v. Cox, 96 U.S. 404; Stanton v. Haskin, 1 MacArthur, 558; Belding v. Smythe, 138 Mass. 530; Huber v. Johnson, 70 N.W. 806.
This action was brought to foreclose a mortgage upon real estate, which mortgage was made and delivered by the defendants, George H. Walsh and his wife, to secure the payment of certain promissory notes executed and delivered by said defendants to one E. P. Gates, and afterwards sold, indorsed, and assigned to the plaintiff, together with said mortgage. The action has met with more than the usual number of vicissitudes. It was commenced in 1885, John M. Cochrane, Esq., then being plaintiff's attorney. On November 11, 1893, a paper signed by John M. Cochrane was filed with the Clerk of the District Court, reciting, in substance, that the firm of Eaton & Higbee (lawyers then in practice at Grand Forks) were substituted in the place and stead of Cochrane as attorneys for plaintiff, but no order of court was ever made pursuant to said document, or at all, substituting said firm as plaintiff's attorneys in the action. Said defendants never having answered or appeared in the action, a default judgment was entered against them in the action on November 11, 1893. On a notice of motion served by the defendants' attorney, J. B. Wineman, upon said law firm of Eaton & Higbee, as the attorneys for the plaintiff, said judgment by default was set aside and vacated by an order of the District Court made in May, 1894. Again, on a notice of motion served by said J. B. Wineman, as defendants' attorney, upon said firm of Eaton & Higbee, as plaintiff's attorneys, the District Court, by an order filed October 14, 1895, directed that the action be dismissed with prejudice; said order being predicated upon certain affidavits made and filed in the District Court, wherein and whereby it was charged, or sought to be charged, that the action was being prosecuted upon a champertous agreement made and entered into between the plaintiff and R. A. Eaton, who was a member of said firm of Eaton & Higbee; the alleged champertous agreement as embodied in said affidavits being, in substance, this: That said R. A. Eaton agreed with the plaintiff to prosecute said action at his own cost and expense, and as compensation therefor the said Eaton should receive one-half of the amount recovered by means of the proposed litigation. Upon the affidavits which were filed in a certain motion made in the action the District Court found as follows: "This action is prosecuted on a champertous agreement," and the court by its order, thereupon directed the action to be "dismissed with prejudice." Upon the hearing of the last mentioned motion the plaintiff was represented by said R. A. Eaton and the defendants by said Wineman. From this order, and prior to the entry of any judgment thereon, plaintiff attempted to appeal to this court, and this court, by its order made at the October term, 1897, dismissed said appeal. The notice of said appeal was apparently signed by J. B. Eaton, Esq., an attorney-at-law residing in this state, said R. A. Eaton, who had before the appeal removed out of the state, signing said notice as counsel only. The motion to dismiss said attempted appeal was made by the defendants' said attorney, J. B. Wineman, and notice of said motion was served by Wineman on said J. B. Eaton. Said notice was not based upon the ground that the said notice of appeal was improper in form, or was not properly signed; nor was it stated in the notice that said J. B. Eaton was not, when he affixed his signature to such notice, the attorney of the plaintiff for the purposes of the appeal; but, on the contrary, an affidavit filed in the case and made by said J. B. Wineman states that he (Wineman) served the notice to dismiss the appeal, together with his printed brief in the action, "upon James B. Eaton, one of the attorneys for the appellant." The appeal was dismissed upon the ground that the mere order for judgment from which an appeal was attempted to be taken to this court was a non appealable order. A judgment having been entered in the District Court, the case is again before us on appeal from said judgment.
Defendants, by their said counsel, now move to dismiss this appeal upon the ground, among others, that said J. B. Eaton, whose name is signed to the notice of appeal, was not and is not the attorney of the plaintiff, and that his name was signed by R. A. Eaton without authority. In opposition to the motion the affidavits of both J. B. and R. A. Eaton are filed, and they set out in substance that said J. B. Eaton is, and was when said notice was signed, plaintiff's attorney for the purpose of prosecuting this appeal, and that R. A. Eaton was authorized by him to sign the notice of appeal as it was signed, viz. with the signature of J. B. Eaton. We think the notice of appeal was sufficiently signed. There can be no doubt that an attorney of a party to an action can authorize another to sign his (the attorney's) name to a paper in the action. This, under the showing made (and it is not contradicted,) is precisely what was done in this case. We think, too, that defendants' counsel has fully recognized J. B. Eaton as plaintiff's attorney in the action by serving upon him without reservation his brief and notice to dismiss the former appeal, thereby waiving any objection he may have had with respect to the right of J. B. Eaton to appear as plaintiff's attorney in the action.
Defendant's counsel further contends that said firm of Eaton & Higbee were never legally substituted as plaintiff's attorneys, and consequently that John M. Cochrane is still the attorney for the plaintiff. This position is untenable. While it is true, upon the facts stated, that Cochrane's connection with the action was never severed by any formal order of court, yet it is likewise true that Cochrane, in writing, consented to such severance, and turned over the files of the case to Messrs. Eaton & Higbee; and the further fact appears that the attorney of the defendants thereafter repeatedly recognized Eaton & Higbee as plaintiff's attorneys, and never attempted to divest them of their apparent authority to act for the plaintiff. We are clear that the irregularity of the appointment of Eaton & Higbee has been fully waived by counsel for the defendants, and that under the facts disclosed in the record said John M. Cochrane ceased to be the attorney of the plaintiff long prior to the date of the order of the District Court dismissing this action. It appears, therefore (both members of the firm of Eaton & Higbee having removed from the state,) that it was certainly competent for the plaintiff to employ other counsel, and the uncontradicted evidence is that plaintiff has done so, and that such counsel is J. B. Eaton, an attorney of this state, who now prosecutes this appeal.
The undertaking upon the appeal is objected to as informal, the appellant has, however, procured another undertaking, which is regular in form. We have directed the new undertaking to be filed, and this objection is therefore overruled, and we shall, without further comment, deny respondent's motion to dismiss the appeal.
Defendant's counsel further moves in this court to strike out the statement of the case. The statement was settled by the Honorable Charles F. Templeton on March 4 1897, he having presided when the order of dismissal was filed. Judge Templeton retired from office on January 1, 1897, his term having expired at that time. Defendants' counsel appeared before Judge Templeton at the time the statement was settled, and objected to the settlement upon the following grounds, viz.: "For the reason that said statement of the case had not been presented to...
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