When a defendant who has been duly served with process causes an
appearance to be entered on his behalf by a qualified attorney, and
the attorney subsequently withdraws his appearance, but without
first obtaining leave of court, the record is left in a condition
in which a judgment by default for want of an appearance can be
validly entered.
This was an action of assumpsit, begun in the district court for
Bernalillo County, Territory of New Mexico, on the 17th day of
July, 1894, by Charles H. Gildersleeve against the Rio Grande
Irrigation Company. The declaration is in the ordinary form,
containing a special count upon a promissory note for the sum of
$50,760, dated June 30, 1890, bearing interest at the rate of
twelve percent, and containing also the common counts in assumpsit.
The note sued on was payable to P. R. Smith, and endorsed by him
and defendant in error, and a copy thereof was filed with the
declaration, and also a copy
Page 174 U. S. 604
of a resolution of the directors of defendant authorizing the
giving of a note, not to P. R. Smith, but to the Second National
Bank of New Mexico. Upon this declaration, process was issued,
service of which was made upon J. Francisco Chavez, a director and
stockholder of plaintiff in error. Process was returnable on the
first Monday of August, 1894, under the provision of the Practice
Act of 1891, and on the 3d day of August, 1894, defendant below
entered its appearance by H. L. Pickett, its attorney. On the 15th
day of September, 1894, the plaintiff filed in the office of the
clerk of the district court a letter from Mr. H.L. Pickett,
addressed to plaintiff's attorneys, in which the writer states that
he withdraws the appearance at the request of Col. P. R. Smith (who
is the original payee of the note sued on). Thereupon the clerk of
the district court made and filed a certificate of nonappearance,
and on the same day a judgment was entered, based upon the said
certificate, which judgment is for the sum of $76,393.80.
Afterwards, and on the 15th day of November, 1894, during the
next term of the district court after the judgment had been entered
in vacation, the defendant below filed a motion to vacate the
judgment for defects and irregularities apparent on the face of the
record. This motion was not heard until the 6th of September, 1895,
when it was denied by the court, and on the 9th day of September,
1895, defendant below filed a second motion to vacate the judgment
for reasons set forth in the accompanying affidavit filed
therewith, and also filed at the same time its proposed pleas
verified by oath. The affidavit with said motion shows in substance
that the plaintiff below received from defendant below, in the
summer of 1889, 50,000 shares of its capital stock and the sum of
$1,510,000 in its first mortgage bonds, for the purpose of
purchasing certain property in New Mexico for said company. It
further appears from said affidavit that the plaintiff below did
purchase a portion of the property in New Mexico, and turned back
to the company a portion of the bonds and stock in lieu of the
property which he did not purchase, and retained the remainder of
the bonds and stock as his own property, but induced
Page 174 U. S. 605
the company to assist him in raising the money necessary to make
final payment for the Vallecito grant by executing a promissory
note for $47,000; the note in the present case having been
subsequently given in renewal of the first note. In other words, it
is shown that the indebtedness was that of the plaintiff below, and
not of the company; that the company never received any money on
said note, nor any benefit therefrom, but was merely an
accommodation maker, to assist the plaintiff below in carrying out
his contract with the company. At the time of the execution of said
note for $47,000, the plaintiff below agreed to deposit, as
collateral security thereto, $120,000 of bonds of the company, and
it is further shown by said affidavit that the said collateral has
never been accounted for in any manner. The district court entered
judgment denying the motion.
The defendant company sued out a writ of error to review the
case in the supreme court of the territory, where the judgment of
the district court was affirmed. The case was then brought to this
Court by writ of error, and afterwards an appeal was taken, the
case thus appearing twice on the docket of this Court as Nos. 163
and 254.
MR. JUSTICE SHIRAS, after stating the facts in the foregoing
language, delivered the opinion of the Court.
It is conceded that the Rio Grande Irrigation & Colonization
Company was duly served with process, and that an appearance was
entered on its behalf by H. L. Pickett, a qualified attorney. The
essential question in the case is whether the subsequent withdrawal
of his appearance by the attorney, without leave of the court, left
the record in a condition in which a judgment by default for want
of an appearance could be validly entered.
Page 174 U. S. 606
Cases are cited by the appellant's counsel in which it has been
held that the appearance of a defendant, once regularly entered,
cannot be withdrawn without leave of the court.
United
States v. Curry, 6 How. 111;
Dana v.
Adams, 13 Ill. 692.
But an examination of those cases discloses that this is a rule
designed for the benefit and protection of the plaintiff. Usually
the question has arisen where there had been no service of process
on the defendant, and where therefore a withdrawal of appearance by
the attorney would leave the plaintiff without ability to proceed
by defaulting the defendant for want of an appearance. It was said
by this Court in
Creighton v.
Kerr, 20 Wall. 13: "The appearance gives rights and
benefits in the conduct of a suit, to destroy which, by a
withdrawal, would work great injustice to the other parties."
United States v. Curry, supra, was a suit in equity
which had passed to a final decree, and the defendant, desiring to
appeal, issued a citation to the complainant, which citation was
served on the person who had been attorney of record during the
trial of the suit. The attorney subsequently by affidavit stated
that he was not the attorney of the appellee at the time the
citation was served on him, that he had been discharged from all
duty as attorney, and had so informed the marshal at the time of
the same. The validity of the appeal was therefore attacked on the
ground that there had been no proper service of the citation. This
Court said:
"The citation is undoubtedly good and according to the
established practice in courts of chancery. No attorney or
solicitor can withdraw his name, after he has once entered it on
the record, without the leave of the court, and while his name
continues there, the adverse party has a right to treat him as the
authorized attorney or solicitor, and the service of notice upon
him is as valid as if served on the party himself. And we presume
that no court would permit an attorney who had appeared at the
trial with the sanction of the party express or implied, to
withdraw his name after the case was finally decided, for if that
could be done, it would be impossible
Page 174 U. S. 607
to serve the citation where the party resided in a distant
country or his place of residence was unknown, and would in every
case occasion unnecessary expense and difficulty, unless he lived
at the place where the court was held. And, so far from permitting
an attorney to embarrass and impede the administration of justice
by withdrawing his name after trial and final decree, we think the
court should regard any attempt to do so as open to just
rebuke."
Sloan v. Whittbank, 12 Ind. 444, was a suit on a
promissory note, and to which the defendant appeared. He then
withdrew his appearance, and the case went to trial and resulted in
a judgment in favor of the plaintiff. On error, the Supreme Court
of Indiana held that the withdrawal of appearance carried with it
the answer, and the court should then have entered judgment as by
default, instead of going to trial, but that this was a mere
irregularity, which could not injure the defendant, and could not
be taken advantage of on appeal.
So it was held by the Supreme Judicial Court of Massachusetts
that it was no ground for reversing a judgment rendered on the
default of the defendant, after he had appeared and then withdrawn
his appearance, that the date of the writ was a year earlier than
the fact.
Fay v. Hayden, 7 Gray 41.
A case indeed might arise of collusion between the plaintiff and
the attorney of the defendant, but in such case the court, on due
and prompt application to it, would no doubt defeat any attempt on
the part of the plaintiff to take advantage of a corrupt
dereliction of duty on the part of the defendant's attorney. But it
is not pretended in the present case that there was any collusion
practiced between the plaintiff and the defendant's attorney, nor
that the latter, either in entering or withdrawing defendant's
appearance, acted without authority or by mistake.
It is, however, strenuously contended that the record does not
show that the defendant below ever attempted to withdraw its
appearance, and that hence the judgment by default for want of an
appearance had no basis. By this is meant that the letter of
Pickett, the attorney, cannot be regarded as part of the
record.
Page 174 U. S. 608
We agree, however, with the supreme court of the territory that
this letter, which constituted the withdrawal of appearance, was
sufficiently brought into the record by the defendant's bill of
exceptions, in which it is set forth at length, and wherein it is
averred that said paper, signed by Pickett, was filed by plaintiff
in said cause. The mere fact that a paper is found among the files
in a cause does not, of itself, make it a part of the record, but
it may be put into the record by a bill of exceptions, or something
which is equivalent, so as at least, to enable the supreme court of
the territory to deal with it as part of the record.
England v.
Gebhardt, 112 U. S. 502.
It is not claimed that this Court, upon this record, can look
into the merits of the case. The only matter for our consideration
is whether the supreme court of the territory erred in affirming
the judgment of the trial court denying the defendant's motion to
vacate the judgment entered in default of an appearance.
The judgment by default was entered on September 15, 1894, in
vacation, and on November 15, 1894, and during the next succeeding
term, a motion was made on behalf of the defendant company to
vacate the judgment. This motion was, on September 5, 1895, denied,
and on September 9, 1895, another motion, accompanied with an
affidavit of a defense on the merits, was filed, and this motion
was likewise denied.
There is a rule prescribed by the supreme court of the
territory, in the following terms:
"No motion to set aside any finding or judgment rendered in
vacation shall be entertained unless it shall be filed and a copy
thereof served upon the opposite party within ten days after the
entry of such finding or judgment."
As no discretionary power was reserved to the trial judge, he
could not dispense with this rule of court. As was said in
Thompson v. Hatch, 3 Pick. 512:
"A duly authorized rule of court has the force of law, and is
binding upon the court as well as upon parties to an action, and
cannot be dispensed with to suit the circumstances of any
particular case. . . . The courts may
Page 174 U. S. 609
rescind or repeal their rules, without doubt, or, in
establishing them, may reserve the exercise of discretion for
particular cases. But the rule, once made without any such
qualification, must be applied to all cases which come within it
until it is repealed by the authority which made it."
However, the supreme court of the territory did not consider it
necessary to determine whether the trial court could have set aside
the judgment on an application filed after the ten days had
expired, if a diligent effort and a showing of merit had been made,
but held that there was such an apparent lack of diligence in this
case that the trial court properly refused to set the judgment
aside.
A motion, even if made within the time prescribed by the rule,
to set aside a judgment is addressed to the discretion of the trial
court, and where the exercise of that discretion has been approved
by the supreme court of the territory, we should not feel disposed
to overrule those courts unless misuse or abuse of discretionary
power plainly appeared, and we cannot say that this is such a
case.
Even if we could regard this not as a mere application under the
rule to vacate a judgment, but as a proceeding of an equitable
character outside of the rule, we should be compelled to reach the
same conclusion. In
Bronson v. Schuelten, 104
U. S. 417, it was said:
"The question relates to the power of the courts, and not to the
mode of procedure. It is whether there exists in the court the
authority to set aside, vacate, and modify its final judgments
after the term at which they were rendered, and this authority can
neither be conferred upon nor withheld from the courts of the
United States by the statutes of a state or the practice of its
courts."
"We are also of opinion that the general current of authority in
the courts of this country fixes the line beyond which they cannot
go in setting aside their final judgments and decrees, on motion
made after the term at which they were rendered, far within the
case made out here. If it is an equitable power supposed to be here
exercised, we have shown that a court of equity, on the most formal
proceeding, taken in due time, could
Page 174 U. S. 610
not, according to its established principles, have granted the
relief which was prayed for in this case. It is also one of the
principles of equity most frequently relied upon that the party
seeking relief in a case like this must use due diligence in
asserting his rights, and that negligence and laches in that regard
are equally effectual bars to relief."
The judgment of the supreme court of the territory affirming
that of the district court is
Affirmed.
