Cleveland v. Hopkins

Cassoday, J. There is no claim that the summons was personally served, nor that the appellant had any personal knowledge of the pendency or existence of the suit until after the entry of judgment. . The name of the person with whom the summons was left does not appear. It does state that it was left with a member of his family, but this would seem to be a mere conclusion of the officer making the return. Johnson v. Curtis, 51 Wis., 597. By naming or describing the person with whom the summons was left, it might be made to appear that such person was not at the time a member of the appellant’s family. However this may be, it is [389] manifest -from the affidavits that the appellant never had any notice of the suit, much less that he ever authorized any one to appear for him in the case. ■ About the time of the commencement of the suit the president of the bank retained the firm of Butler, Buttock & Oottrill as attorneys for the bank, and directed them to appear as attorneys for certain of the defendants therein, including the appellant, an alleged stockholder. But it does not appear that the president of the bank had any authority from Hopkins to give any such direction as to him. On the contrary, it appears from his testimony and affidavit that he knew nothing of such a suit until he saw in the newspapers an account of the entry of the judgment. If he knew nothing of the suit, then he had no occasion to employ attorneys to defend the same. Moreover, Mr. Butler and Mr. Oottrill, who seems to have had charge of the case on the part of the bank and other defendants, both disclaim any authority from Hopkins to appear in his behalf. Such being the facts, was the unauthorized and undoubtedly inadvertent appearance of Butler, Buttrick & Oottrill in behalf of Hopkins conclusive upon the latter? Undoubtedly many conflicting opinions can be found in the books upon this question. In Am. Ins. Co. v. Oakley, 9 Paige, 498, cited by counsel for the respondent, Chancellor Walwoeth states the rule thus: “As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regular licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client. But if the party for whom such solicitor appears, or assumes to act, denies his authority and applies to the court for the relief before the adverse party has acquired wivy rights or suffered amy prejudice in consequence of the acts of the solicitors, the court may correct the proceeding, and may compel the solicitor who has assumed to act without authority to pay the costs to which the parties have been sub [390] jected in consequence of Inis improper interference. Wright v. Castle, 3 Mer., 12; French v. French, 4 Law Rec. (N. S.), 123; Lord v. Kellett, 2 Mylne & K., 1. In cases, however, where the adverse party has acquired rights, or been subjected to costs by proceedings in the name of a party who afterwards denies the authority of the attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand where the solicitor or attorney is a responsible man, and leaving the party injured by such unauthorized proceedings in his name to seek his redress against such solicitor or attorney by a summary application to the court or otherwise. Dundas v. Dutens, 1 Ves. Jr., 196; Denton v. Noyes, 6 Johns., 297; Cox v. Nicholls, 2 Yeates, 547; Ex parte Stuckey, 2 Cox Cas., 283.” Here it would seem that the application to the court was “ before the adverse party had acquired any rights or suffered any prejudice in consequence of the acts of the solicitors.” In this state, however, the question has been somewhat simplified by the statute, which provides that ‘.‘the court, or a judge, may likewise, in discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, or other proceeding against him, through his mistake, inadvertence, surprise, or excusable neglect,” etc. Sec. 2832, R. S. (sec. 38, ch. 125, R. S. 1858). Where thp circuit court has exercised the discretion thus vested, it has frequently been held that “ this court will not interfere unless there has been a manifest abuse of such discretion.” Smith v. Smith, 51 Wis., 668, and cases there cited. But it has also been frequently held, in effect, that such discretion must be a legal discretion, and where the application is made in time, and presents a case of “ mistake, inadvertence, surprise, or excusable neglect,” accompanied by a verified answer alleging a good defense on the merits, it is a manifest abuse of discretion not to open the judgment upon reasonable tenjis. [391] Johnson v. Eldred, 13 Wis., 482; Butler v. Mitchell, 15 Wis., 355; S. C., 17 Wis., 54; Hanson v. Michelson, 19 Wis., 498. Such is the rule even where attorneys have appeared in. the case by authority, and the reasons for holding the same way are manifestly stronger where they have appeared without authority. Here the motion was made within two months after the entry of the judgment, and hence the criticism of some of the above cases in McKnight v. Livingston, 46 Wis., 356, is not applicable. As the motion papers were accompanied by an affidavit of merits, it is unnecessary to consider the question of its necessity. See Levy v. Goldberg, 40 Wis., 315; Town of Omro v. Ward, 19 Wis., 232. The motion was also accompanied by a verified answer, denying that he had ever at any time been a stockholder in the defendant bank, and alleging that he had never owned or held any stock whatever in the defendant bank. Since the defendant Hopkins was sought to be made liable solely on the ground that he was such stockholder, the answer, if true, would seem to present a perfect defense upon the merits. Without going further into details, we are clearly of the opinion that the motion papers brought the case within the provisions of the statute quoted, and hence the motion should have been granted. For the reasons given the order of the circuit court denying the motion of the defendant Hopkins must be reversed, and the cause remanded for further proceedings according to law. By the Court.— It is so ordered.