Sayer v. Lee

POLLEY, J. This is an appeal from .an order fixing the time within) which to serve moflee of iotenition to' mlclve for a mew trial and to prepare ainid settle the record in this case. The case was tlriecl in Marshall county and judgment entered on the 1st dlay iof July, 1914. The verdict and judgment were in favor of plaintiff, but she was dissatisfied with the .amount of the verdict antd directed her attorney, who prosecuted amid tried the caíste, to take the necessary steps tel secure a new trial, oir to appeal the case to 'this count, if. necessary. This her said counsel promised to do, and, from time to. time 'thereafter, assured plaintiff he was doling. Plaintiff relied upon said counsel to proceed with the case and .believed that the matter was being properly attended to unltil about the middle olf April, 1917, when she learned, by inquiry of the clerk of courts', that no- move of any kind hold ever been made by her said attorney to secure a new trial or to prepare or ¡settle the said record1. Upon learning this fact, she 'alb once employed cither counsel, who. applied to the court to. fix a new time within which plaintiff might serve and file her notice of intention to move for a new trial ¡and to cause said record' to be settled. The application' was granted, and 'defendant appeals;. [1, 2] The only question presented by appellant is that the showing miadle by iresplclnidlent i.s not sufficient, under the provisions of section 151, Oodle of Civiil Procedure, to warrant the court in relieving respondent from her default. The reason why the necessary steps- to procure -a new trial were not taken within the time fixed! for that purpose by statute is the negligence iclf respondent's counsel, .and it is appellant's contention the such negligence should be imputed' to respondent. As a rule, a client is bound by the acts of his attorney; but this, is true only slo far as such acta relate to the management of business instructed to an attorney or to the various steps taken -by him in the transaction of his client’s business. Where an .attorney acts in giclold faith within the scope of his authority in representing his client, his‘ adfcs,. both of commission and omission', will be regarded 'as the acts of hlis client, and (the negligence of the attorney will be 'regarded as the negligence of the [173] client. 2 R. C. L. 965. But tlhiis -rule -clioes n:ot apply where the attorney has acted! An hadi faith or iobe'ntton'ally neglects Ms client’s business.. In tlhiis case there wlas -a total failuire -on the part ic/f tiré attorney to lake any steps! whatever to attend to the business insitruotedl Ito Ms care. While he prlo-mi-sled to proceed with the motion for a new trial and assured respondent from 'time to time that it'hie necessary -steps were being taken, as a Matter of fact be neglected to- dto anything at all. Su-dh negligence should not be innpu-tedl toi -respondent. When respondent •employed Wear attorney, whio was 'a member of the bar in good standing and engaged An tine general practice of 'bis profession, to look after her case and he accepted such employment, ire-spianident had done everything that an ordinary -prudent amid vigilant person would rilo. As w'as said -by this court in Searles v. Christensen, 5 S. D. 650, 60 N. W. 29: “To hlokl, or even suggest, itk-alt he should have glebe f-uirt'ber, * * * wo-uldl be a reflection upon the integrity and intelligence of t-hc -profession.” That respondent was acting in goad faith, and- was relying updn her counsel to proceed with a, motion for a new trial is apparent from the fact that, during- the month, of March, 1916, and More than a year before -tire motion which- resulted1 in the order from which, this -appeal is taken- was Made, appellant undertook to p'ay the judgment in, the case atad deposited the amount thereof and- costs, amounting An alii to m-clre -than $3,000, with; the clerk of courts of Marshall counity, to be plaid to respondent in salti-sfaction -of Said juldgment. Respondent refused to accept said s-um, and1, so far as appears from the record in the Case, said s-um of Money As still so on deposit. If i-s not at all likely Ithfat respondent would have refused -to- accept the amount of the judlgmanlt -and1 have 'allowed sla'id sum of Money to lie idle in the hand® of the clerk of courts -dinning all these Months if she bad not intended to prosecute her effort to procure a new trial. [3] Section 151, Code of Civil Procedure, is a remedial statute, -and should receive -a liberal cons-truciom. Searles v. Christensen, 5 S. D. 650, 60 N. W. 29; McConnell v. Marguilies, 165 N. W. 990; Bank v. Branden, 19 N. D. 489, 126 N. W. 102, 27 L. R. A. (N. S.) 858; Fisk v. Hicks, 29 S. D. 399, [174] 137 N. W. 424, Ann. Gas. 1914D, 971. Undleir all the oircu-mislban-ces- of this case, we believe ■respondent’s neglect to serve her intention to move -for a new tidal and have the record prepared and settledi within the time fixed bylaw was 'excusable, amid the trial -court was fully justified in setting .asidle the -defiaulit. The order appeail-adi from i-si affirmed.