Smith-Nieland v. Reed

BUDGE, J. This action arises out of a contract entered into between appellant and respondents in 1919 for the purchase of certain lands in Bonneville county. Appellant claims that she was entitled, under the contract, to the crops growing upon the land during that year, alleged that *789 she had been deprived by respondents of a portion of such crops and sought by this action to recover the value thereof. Respondents’ answer in effect constituted a denial. They also filed a cross-complaint praying for a cancelation of the contract and asked that title to the premises be quieted in them. By stipulation of the parties all the material allegations of the cross-complaint were deemed denied. On April 24, 1922, C. E. Crowley announced in open court his withdrawal as attorney for appellant, of which proper entry was made in the minutes by the clerk, for the reason that appellant had requested such withdrawal and informed Mr. Crowley that she had employed other counsel in the case. On April 26, 1922, counsel for respondents notified appellant by letter, addressed to her at Ashton, that her case against respondents had been set down for trial on April 28, 1922, at 2 o’clock P. M. They also notified appellant by the same letter that C. E. Crowley had withdrawn as her attorney in this case. It appears from appellant’s affidavit that owing to her absence from- Ashton she did not receive this letter until about 1:00 P. M. on April 28, 1922. On that day the cause came on for trial at Idaho Falls and respondents appeared by E. M. Holden as counsel, but no appearance was made on behalf of the appellant other than as shown by the record that A. H. Wilkie, Esq., appeared “specially for the plaintiff for the purpose of objecting to the case proceeding to trial,” for the reason that her attorney, C. E. Crowley, withdrew from the case on April 24, 1922, and no notice had been served upon her to appoint another attorney or to appear in person as provided by C. S., sec. 6577. This objection was overruled and the motion of respondents “that the complaint filed herein and the main controversy herein be dismissed for want of prosecution” was granted. Judgment was thereupon entered accordingly. Upon the issues raised by the cross-complaint proof was submitted and judgment awarded in favor of respondents. Appellant thereafter moved to set aside the judgment of dismissal in the main action and the judgment on the cross-complaint on the following grounds: *790 “1. That her attorney of record, C. E. Crowley, withdrew from the case and had ceased to act as plaintiff’s attorney, on April 24, 1922, and that written demand, or any demand or notice whatsoever, had not been made upon plaintiff by the defendants or from any other source ,to appoint other counsel or appear in person as required by section 6577 of the Idaho Compiled Statutes 1919. 2. That on the 28th day of April, 1922, at the time said cause came on for trial, and the said judgments were made and entered, plaintiff had not received notice, official or otherwise, that the cause was set for trial, except the information conveyed to her by A. H. Wilkie, on April 27, 1922, at about 8:00 o’clock P. M., as set forth in affiant’s affidavits, and at that time had not retained counsel to represent her in said cause.” This motion was denied and appeal is taken from the order denying the motion. The court’s ruling upon the motion is the only ground specified and relied upon for a reversal. C. S., sec. 6574, provides that: “The attorney in an action or special proceeding may be changed at any time before judgment or final determination as follows: “1. Upon his own consent, filed with the clerk, or entered upon the minutes.....” From the record in this case it appears that C. E. Crowley, Esq., withdrew from the case on April 24, 1922, at the request of appellant and that his withdrawal was entered in the minutes as of that date. C. S., see. 6575, provides that: ‘ ‘ When an attorney is changed, as provided in the last section, written notice of the change and of the substitution of a new attorney, or of the appearance of the party in person, must be given to the adverse party; until then, he must recognize the former attorney.” No such written notice was given in this case. In the absence of the giving of such notice, respondents owed no duty to appellant to inform her of the withdrawal of her attorney. It was appellant’s duty to give respondents ’ coun *791 sel notice of the withdrawal of her attorney. However, in order to be fair and to take no undue advantage of the appellant, counsel for respondents sought to comply with the provisions of C. S., sec. 6577, which reads as follows: “When one party’s attorney dies, is removed, suspended or ceases to act as such, the adverse party must, before any further proceedings can be had by written notice, require such party to appoint another attorney or to appear in person.” This notice, while sent to appellant by registered mail, did not reach her, according to her affidavit, until 1 o’clock P. M. on April 28, 1922, and the cause was set for trial at 2 o’clock on that day. This statute, as we construe it, has no application where the adverse party has personal knowledge of the withdrawal of her attorney and of the setting of the case for trial, and therefore respondents were under no duty to give the notice. From appellant’s affidavit and also from the affidavit of A. H. Wilkie, her attorney, it appears that on April 27, 1922, she had personal notice of the setting of the cause for trial on the following day and that she met Attorney Wilkie at Ashton on April 27, 1922, and prior thereto and consulted with him with reference to the case. Mr. Wilkie appeared when the ease was called for trial at the time theretofore set and sought to have the cause continued for the sole and only reason that Mr. Crowley had withdrawn from the ease on April 24, 1922, as appears by Mr. Crowley’s affidavit, which affidavit discloses1 the fact, among other things, that appellant had requested Mr. Crowley to withdraw and had informed him that she had employed other counsel in the case. It further appears that prior to April 24, 1922, appellant went to Mr. Wilkie for the purpose of employing him as her attorney in the case and that he informed her that it would be necessary for her to first settle with Mr. Crowley and arrange with him to withdraw from the case. She did this on or about April 24, 1922, and immediately returned and so informed Mr. Wilkie, who was later employed by her and appeared for the purpose of having the cause continued for the reason above stated. *792 No sufficient application was made for a continuance and the court did not abuse its discretion in denying the motion. To our minds it is quite clear that the purpose sought to be attained in the proceedings had was that the cause go over the term, to the end that the possession of the property sought to be had be delayed, thereby giving to appellant the benefit of the crop thereafter to be grown. The order made by the lower court should be affirmed and it is so ordered. Costs are awarded to respondents. McCarthy, C. J., and Wm. E. Lee, J., concur.