Welch v. Challen

The opinion of the court was delivered by Valentine, J.:

The principal questions involved in this case are the following: (1.) When, if ever, is the negligence of an attorney at law in permitting a j udgment to be wrongfully rendered against his client such an “unavoidable casualty or misfortune, preventing the party from prosecuting or defending” the action, that the client may have the judgment vacated under §568 of the civil code, and be let in to prosecute or defend the action? (2.) And if ever such negligence may be such an “ unavoidable casualty or misfortune,” was it such in the present case?

The principal fact set forth by the present plaintiffs as rendering the negligence of the attorney material, and as rendering it an “ unavoidable casualty or misfortune,” authorizing the vacation of the judgment rendered against them, is the fact that the attorney was and is insolvent; while the principal facts urged by the present defendant as rendering the negligence of the attorney immaterial, and not such an “unavoidable casualty or misfortune,” are the facts that the said judgment was not rendered until more than four months after the attorney had committed his principal act of negligence, and was not rendered until the present plaintiffs had had ample time and opportunity to know of such negligence,'and to employ other attorneys, and to take all necessary steps to defend the action. That action, as appears from the present plaintiffs’ petition, was commenced on September 28, 1881. The summons was ■ served upon the present plaintiffs (the then defendants) in Ohio, on November 15, 1881. The answer day was fixed for January 14, 1882. The plaintiffs, immediately after being served with summons, *701 through their agent, W. B. Beebe, who resided in Marion county, Kansas, employed an attorney, A. McKee, who also resided in Marion county, Kansas, and instructed McKee specially to file an answer in that case at the proper time, which, as before stated, was any time prior to January 15, 1882, and McKee agreed to do so; but he never did file such an answer, but before the time for filing the answer had expired, he left the state of Kansas, and has never returned. The' agent, Beebe, also left the state of Kansas about the same time, and did not return to Kansas until after the judgment was rendered in the said case. - The district court, in which said action was pending, was in session in January, 1882, but by an understanding between the parties no action was taken in the case at that term. At the next term of the district court, and on May 22, 1882, judgment was rendered by default, in favor of the present defendant, then plaintiff, and against the present plaintiffs, then defendants. The present plaintiffs had no knowledge of McKee’s negligence, or of the rendition of this judgment, until long after both had actually occurred; arid it does not appear that after McKee’s employment they ever had any correspondence with either McKee or Beebe. It would seem, in fact, that they were also negligent, as well as their attorney and agent, McKee and Beebe.

Upon the foregoing facts, should the judgment rendered against the present plaintiffs be vacated, and they be allowed to defend in the original action? Under .the authorities, we would think not. Mr. Freeman, in his work on Judgments, uses the following language:

. “The neglect of an attorney or agent is uniformly treated as the neglect of the client or principal, except in New York. A default will not be opened because the attorney had prepared a demurrer, but had failed to file it by reason of his miscalculating the time when it was due; neither will relief be granted because the attorney forgot the day and time for trial. And in general no mistake, inadvertence or neglect, attributable to the attorney, can be successfully used as a ground for relief, unless it would have been excusable if attributable to the client.” (Freeman on Judgments, § 112, and *702 cases there cited. See also 3 Pomeroy’s Eq. Jur., §1361, and cases there cited.)

The decisions from Wisconsin cited by the plaintiffs are not applicable to the present case, for they were made under a statute very different from the statutes of Kansas. The Wisconsin cases were decided under a statute which reads as follows:

“The court may, . . . in its 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.” (Rev. Stats, of Wis. of 1858, ch. 125, § 38; Rev. Stats. of Wis. of 1878, ch. 127, § 2832.)

But even if the statutes of Wisconsin were the same as those of Kansas, the decisions referred to would hardly be applicable to the present case, for reasons which will occur to anyone who will carefully read those decisions and this case. What has been said with reference to the Wisconsin cases we think may also be said with reference to the case of Hildebrandt v. Robbecke, 20 Minn. 100 , though we are not sure from the meager report of the case. We would also think that the motion to set aside the judgment in the Minnesota case was made immediately after the rendition of the judgment, at the same term of the court at which the judgment was rendered, and upon sufficient grounds under such circumstances. (See further, Merritt v. Putnam, 7 Minn. 493 .) The cases of Sharp v. The Mayor, &c., 31 Barb. 578 , and Elston v. Schilling, 7 Robt. (N. Y.) 74, were not decided by courts of last resort; and the case of Meacham v. Dudley, 6 Wend. 514 , was not a proceeding to vacate a judgment — it was simply a motion to set aside a default. There are no other cases cited tending to sustain the views of the plaintiffs.

We would therefore think that, as a general rule, the negligence of an attorney in unnecessarily permitting a judgment to be rendered against his client is not sufficient to authorize the vacation of such judgment. There may be exceptions to-this rule, and probably are, but we think the present case *703 comes clearly within the general rule and not within any exception.

The plaintiffs, however, claim that the insolvency of the attorney will take this case out of the general rule; for, as they claim, the plaintiffs would have no adequate remedy for the loss they must suffer in having a judgment wrongfully rendered against them, unless they have the right to have such judgment vacated. This would hardly seem to be a sufficient ground for making an exception. It was no fault of the defendant that the plaintiffs employed an insolvent attorney; and it would hardly seem proper, after a party has obtained a judgment without any fault on his part, to say that the judgment may be vacated and set aside provided that the other party’s attorney is insolvent, but that it may not be vacated or set aside if such attorney is solvent. If such a doctrine should be sustained, then the value of a judgment would often depend upon the solvency or the insolvency of the attorney of the opposite party. But this proceeding is exclusively under § 568 of the civil code, which says nothing about the solvency or the insolvency of the attorneys. It provides that a judgment maybe vacated “ for unavoidable casualty or misfortune preventing the party from prosecuting or defending.” Now the insolvency of an attorney is not an “unavoidable casualty” “preventing the party from prosecuting or defending;” nor is it an “unavoidable misfortune preventing the party from prosecuting or defending.” No party is bound to employ an insolvent attorney, and if he does employ such an attorney the insolvency does not prevent him from employing other attorneys, or from prosecuting or defending his action. The case may be prosecuted or defended just as well with an insolvent attorney as without him, or as with any other attorney. We would therefore think that the insolvency of the attorney cannot make any difference.

Of course where the attorney, through some unavoidable casualty or misfortune, is prevented from prosecuting or defending the action, and the client has not been informed of *704 such casualty or misfortune within sufficient time to employ another attorney, the case would come within the provision of § 568 of the civil code of Kansas. For instance, if the attorney were in some distant city, and, on account of sudden sickness, or high waters, or some railroad accident, or other unforeseen event, could not reach the place of trial within time to prevent the judgment from being rendered against his client, and the client were also absent or otherwise incapacitated from attending to his case, the case would come within the provision of §568 of the civil code; for in such a case,, the casualty or misfortune preventing the attorney from prosecuting or defending the action would also be the client’s casualty or misfortune. But none of the foregoing cases is the present case. In the present case, the attorney was not prevented from defending the action by any casualty or misfortune. Also, where a party moves to set aside a judgment immediately after its rendition, and at the same term at which it is rendéred, it may be set aside for irregularities that would not authorize its being set aside if the application were made at some subsequent term.

Under the circumstances of this case, we cannot say that the court below erred in refusing to vacate the judgment rendered against the present plaintiffs. We cannot say that the negligence of the attorney, or his insolvency, or the present plaintiffs’ (then defendants’) want of knowledge of such negligence, or all combined, constitutes such an “unavoidable •casualty or misfortune preventing the party from prosecuting or defending” the action, that the plaintiffs may have the judgment vacated under §568 of the civil code, and they be let in to defend.

The judgment of the court below will be affirmed.

All the Justices concurring.