McKinley v. Tuttle

By the Court, Sanderson, J.: If we assume, as claimed by counsel for appellants, that Lee attended the trial as attorney for the respondents and conducted the defense on their behalf, their remedy would undoubtedly have been by motion for a new trial under section one hundred and ninety-five, and not by motion for relief from the judgment under section sixty-eight; hut to so assume is to assume the principal point in controversy. The respondents claim that they were not at the trial in person nor by counsel through a mistake, which is shown and explained by the affidavits by which they supported their motion. If this be so, they have not mistaken their remedy. The Judge who presided at the trial found, as his order [240] setting aside the judgment shows, that the judgment was taken by the appellants in the absence of the respondents and their counsel, and that this absence resulted from a mutual and honest mistake between them as to the retainer of the latter, and we think this finding is not only sustained by the affidavits presented on the side of the respondents, but that it is not contrary to the affidavits on the side of the appellants when carefully read. It is nowhere directly stated in the appellants’ affidavits that Lee attended the trial and participated as the attorney of the respondents. The language used in his affidavit by Patterson is that “ Julius Lee, attorney of Guadalupe Castro, and who interposed a demurrer on behalf of said Guadalupe Castro, was present in Court when this case was tried, and took part in the trial thereof.” Prom this language we do not understand Patterson as intending to state positively and as of his own knowledge that Lee was present and participated in the trial as attorney for Guadalupe Castro. He does not so state in terms, nor do we consider that he intended that his language should be so construed. Lee had filed, as the record shows, a demurrer on behalf of Guadalupe Castro; but, as the record also shows, there were some fifty defendants, for some or all of whom Lee may have appeared for aught that appears from the record. Patterson’s language must be read by the light of these facts. So read, we understand him as stating in substance precisely what might be legally presumed from those facts, and nothing more. Lee having filed a demurrer on behalf of Guadalupe Castro, the presumption would be that he had been retained for the purposes of the trial. His subsequent appearance and participation in the trial, unexplained, would be presumed to have been, in part at least, in compliance with such retainer. This made a prima facie case for the appellants, which is all, as we consider, that Patterson intended to say in his affidavit. This prima facie case is, however, fully met and explained by the other side, who show, without contradiction, that [241] Mr. Lee’s retainer went no further than the filing of the demurrer, which was put in solely for the purpose of preventing a default being taken, and that he was not only not retained to appear at the trial on the part of the respondents, but that he did not so appear. While it 'is not expressly so stated, yet it is at least assuméd on the part of the appellants, that Lee not having given them any notice of the limited character of his retainer they bad a right to consider him as having a full retainer, and that the respondents must be considered as conclusively bound by what appeared to appellants to be the case; or, in other words, that the respondents cannot be allowed to contradict the record. Such would doubtless be the result if the question had arisen collaterally, but not so in a direct proceeding in the same action to set aside the judgment under section sixty-eight. In such a case the parties are not concluded by the record in any respect; on the contrary they are allowed to show the true facts by any competent evidence. The order of the Court does not set aside the judgment against all of the defendants, as claimed by counsel for appellants. The effect of the order, though general in its terms at the close, is to be ascertained by a reference to the motion upon which it was made and which is recited at the commencement. The motion was made on behalf of Guadalupe, Simeon and Joaquin Castro only, as is there recited, and the subsequent language must" be read as granting relief to them and them only. On the question of mutual mistake between Castro and Barnes in relation to the retainer of the latter there is no conflict of evidence. The mistake fully explains the absence of Barnes or other counsel, and clearly entitles the Castros to relief under the sixty-eighth section. The affidavit of Guadalupe Castro shows that in retaining Barnes, as he supposed, he was acting also on behalf of Simeon and Joaquin, [242] and hence there was no error in setting aside the judgment as against them as well as Guadalupe. Order affirmed.