It is contended by appellants that the decree in the circuit
court against them ought to be set aside because they have not had
the hearing in that court to which they were entitled by law; that
they were not served with process; that counsel unauthorized by
them entered their appearance, and after having wrongfully entered
their appearance failed to take the proper steps for the protection
of their rights. It is also contended by other parties than the
appellants that there was no real controversy between the parties
nominally opposed to each other, and that the litigation was in
fact carried on under the direction and control of the plaintiff.
Held that questions of this kind may be examined upon
motion supported by affidavits, and that it is the duty of a court
to make such inquiry.
Before any proceedings could rightfully be taken against the
defendants, it was essential that they be brought into court by
service of process or that a lawful appearance be made in their
behalf, and, in this case, it is quite clear that the counsel was
not authorized to appear for Mrs. Browning.
It is fitting that this investigation should be had, in the
first place, in the court where the wrong is charged to have been
done, and before the judge who, if the charges are correct, has
been imposed upon by counsel, and it may be wise that both
examination and cross-examination be had in his presence.
On October 8, 1898, the appellee commenced this suit in the
Circuit Court of the United States for the District of West
Page 184 U. S. 163
Virginia to quiet his title to certain lands. In the bill, he
alleged that he was the owner in fee and in the actual possession
of a large tract, known as the "Robert Morris 500,000-Acre Grant,"
which was granted by Virginia in 1795 to Robert Morris, of
Philadelphia, and is situated partly in West Virginia, and partly
in Kentucky and Virginia. He followed this general allegation with
a detailed statement of his chain of title and of certain tax
proceedings. After these averments tending to show his own rights
and title, he charged that Aly and Joseph Hatfield, father and son,
had at different times obtained pretended titles to certain small
tracts within the limits of his grant, stating how these titles
were obtained and wherein he claimed they were invalid. He further
averred that both the Hatfields were dead; that their only heirs
were the two defendants, now appellants, the widow and daughter of
Joseph Hatfield, who wrongfully claimed the tracts last mentioned
and thereby cast a cloud upon the plaintiff's title. No process was
issued, but on June 8, 1899, a demurrer was filed on behalf of the
defendants, signed by one appearing as their attorney. This
demurrer was overruled on May 16, 1900, and leave given to file
answer. Thereupon, as the record states, the defendants declined to
answer but elected to stand upon their demurrer, and on June 2,
1900, a decree was entered in favor of plaintiff, quieting his
title to the lands claimed by the defendants. From this decree an
appeal was prayed and allowed to this Court, and the appeal papers
were filed here on January 3, 1901.
The bill was so framed as to invite a consideration, in some
aspects, of the question of forfeiture for nonpayment of taxes,
presented to this Court in
King v. Mullins, 171 U.
S. 404.
At the beginning of this term, one of the appellants, Nancy C.
Browing (erroneously, as she states, called Nancy C. Rutherford in
the record) moved for a rule against the attorney who had appeared
for her, to show by what authority he had assumed to so appear and
why he should not be attached and his name stricken from the roll
of attorneys for falsely assuming to act as her attorney and
imposing upon the circuit and this Court a false, fictitious, and
manufactured case for the purpose of obtaining an opinion and
judgment on a false statement
Page 184 U. S. 164
of facts, to her injury and the injury of others similarly
situated but not parties to the suit or appeal. She also asked that
the alleged final decree of the circuit court be declared null and
void, and that this appeal and the cause be dismissed. At the same
time, other parties claiming to be interested in the Robert Morris
tract appeared and represented that the entire proceedings had in
this case were feigned and fictitious, that the litigation on both
sides was controlled by the counsel for the plaintiff King, and
asked an examination as to the truth of the charge so made. A
substantially similar motion was made on behalf of the State of
West Virginia. The counsel named in the record have answered,
denying these charges and asserting the fullest integrity in the
matter. Quite a number of affidavits have been filed, and also some
documentary evidence presented.
MR. JUSTICE BREWER delivered the opinion of the Court.
It is contended by the appellants that the decree in the circuit
court against them ought to be set aside because they have not had
the hearing in that court to which they were entitled by law; that
they were not served with process; that counsel unauthorized by
them entered their appearance, and after having wrongfully entered
their appearance, failed to take the proper steps for the
protection of their rights.
It is also contended (though by other parties than the
appellants) that there was no real controversy between the
parties
Page 184 U. S. 165
nominally opposed to each other, and that the litigation was in
fact carried on under the direction and control of the plaintiff.
It is well settled that questions of this kind may be examined,
upon motion supported by affidavits, and that it is the duty of a
court to make such inquiry in order that it may not be imposed on
by an apparent controversy to which there are really no adverse
parties.
Shelton v.
Tiffin, 6 How. 163,
47 U. S. 186;
Lord v.
Veazie, 8 How. 251;
Cleveland
v. Chamberlain, 1 Black 419,
66 U. S. 426;
American Wood-Paper Co. v.
Heft, 8 Wall. 333;
Tennessee &c. R. Co. v.
Southern Tel. Co., 125 U. S. 695;
South Spring Gold Co. v. Amador Gold Co., 145 U.
S. 300;
California v. San Pablo &c. R. Co.,
149 U. S. 308.
In
Cleveland v. Chamberlain, it was said, quoting from
Lord v. Veazie:
"Any attempt, by a mere colorable dispute, to obtain the opinion
of the court upon a question of law, which a party desires to know
for his own interest or his own purposes, when there is no real and
substantial controversy between those who appear as adverse parties
to the suit, is an abuse which courts of justice have always
reprehended and treated as a punishable contempt of court."
In
Shelton v. Tiffin, in question was as to the
validity of a judicial sale, and it appeared that one of the
defendants in the proceedings had not been served with process;
that an attorney had entered an appearance for him, but had done so
inadvertently and without authority, and it was said:
"An appearance by counsel under such circumstances, to the
prejudice of a party, subjects the counsel to damages; but this
would not sufficiently protect the rights of the defendant. He is
not bound by the proceedings, and there is no other principle which
can afford him adequate protection. The judgment, therefore,
against L. P. Perry must be considered a nullity, and consequently
did not authorize the seizure and sale of his property."
If it be true, as claimed by some of the moving parties, that
this is a collusive suit, that there is no real controversy between
the plaintiff and defendants, that the plaintiff has been
controlling the litigation on both sides with a view of obtaining
an opinion on a matter of law in which he is interested, the
transaction is one which as stated courts of justice have
always
Page 184 U. S. 166
reprehended, and should be treated as a punishable contempt, and
no decree entered under those circumstances should be permitted to
stand.
So far as respects permitting the decree to stand, the same
result would follow, even though there were no collusion, if the
appearance of counsel was in fact not authorized or ratified by the
defendants, and to that matter alone shall we direct our
attention.
Before any proceedings could rightfully be taken against the
defendants, it was essential that either they be brought into court
by service of process or that a lawful appearance be made in their
behalf. Confessedly they were not served with process, and they now
deny the right of counsel to have entered an appearance for them.
The evidence upon this, as well as kindred questions, is
principally in
ex parte affidavits. The appellants were,
respectively, the widow and daughter of Joseph Hatfield, and
claimed title to the various tracts by inheritance from him. It
appears that, in 1895, an action of ejectment was brought by King
against several parties, these appellants among the number. Mrs.
Hatfield was led to employ in that case the same counsel who
entered her appearance in this. We do not stop to inquire into the
circumstances which it is alleged attended that employment. She
swears that it was simply for that action and a suit ancillary
thereto brought to enjoin the cutting of timber; that she never
employed him in any other matter, and knew nothing of the pendency
of this suit until after the decree against her and the appeal to
this Court. She also swears that she never attempted to act for her
daughter in preparing for the defense of any suit or action, or in
making any arrangements for her. Mrs. Browning testifies that, at
the time of the ejectment suit, she was the widow of John
Rutherford; that, on December 25, 1895, she married her present
husband, Albert Browning; that she had no notice or knowledge of
the present suit, and never directly or indirectly employed or
authorized anyone to appear for her therein, or in any other
controversy or matter pertaining to said lands, and further, never
authorized any person to employ said counsel or any other attorney
to appear and represent her in this suit.
Page 184 U. S. 167
On the other hand, the counsel's affidavit is that he was
employed by Mrs. Hatfield in the prior action, and supposed he was
authorized by the scope of that employment to appear for her in
this suit; that he had the title papers of both the appellants in
his possession, and had no suggestion of any revocation of his
authority. He introduced a copy of a letter from Mrs. Hatfield,
which supported his claim of employment at least in the ejectment
case. While he testifies to having met and conversed with Mrs.
Hatfield, he does not state that he ever met Mrs. Browning or had
any conversation or correspondence with her, although he does state
in a general way that she sanctioned and ratified the action of her
mother in employing him.
We do not deem it necessary to mention all the matters of
evidence, but it seems to us quite clear that, whatever may have
been his understanding of the matter, the counsel was not
authorized to appear for Mrs. Browning. She had in fact never
employed him in any litigation in respect to these lands or
otherwise, nor had she authorized anyone to employ him, and she had
no notice of the pendency of this suit. As to Mrs. Hatfield, while
she did at one time employ him in other litigation, she knew
nothing of the pendency of this suit until after the decree and the
appeal, and if the employment in the ejectment action was
sufficiently broad to cover all future litigation of any kind in
respect to the land, it would seem to have been so only in
consequence of a contract which she says was made, and which, if
made, would stamp the whole transaction with wrong.
We do not stop to inquire whether the course pursued by counsel
was under the circumstances the best that could have been taken for
the protection of the appellants' rights. They were entitled to
notice of the pendency of the suit to select such counsel as they
chose, and to be guided by his advice and judgment, even though
that advice and judgment should prove to be erroneous.
We have refrained from spreading upon our records a detailed
statement of the charges and countercharges made in the various
motions and affidavits that have been filed, and have only referred
to so much as seemed necessary for the
Page 184 U. S. 168
present disposition of the case. But our reticence in this
respect must not be taken as expressive of a purpose to ignore
them. The charges are serious ones, affecting the integrity of
counsel commended, by the fact of admission to the bar of the
circuit court, to the confidence of the community. They involve the
due administration of justice in that court, and cannot be passed
without notice and action. It is not enough that the doors of the
temple of justice are open -- it is essential that the ways of
approach be kept clean. We refrain from extended comment, because,
as, heretofore stated, the testimony is mainly by
ex parte
affidavits, which are often, this case being no exception, quite
unsatisfactory, and it is only through the sifting process of
cross-examination that the real facts can be disclosed. When the
truth is ascertained, if there be wrongs as charged, the language
of judicial condemnation should be clear and emphatic, and a
punishment inflicted such as the wrongs deserve, and if no wrong
has been done, the conduct of counsel will be cleared from
suspicion. It is fitting that this investigation should be had in
the first place in the court where the wrong is charged to have
been done and before the judge who, if the charges are correct, has
been imposed upon by counsel, and it may be wise that both
examination and cross-examination be had in his presence.
The order, therefore, is that this case be remanded to the
Circuit Court, with instructions to set aside the decree as well as
the appearance of defendants, and to proceed thereafter in
accordance with law, and also to make a full investigation, in such
manner as shall seem to it best, of the various charges of
misconduct presented in the motions filed in this Court, and to
take such action thereon as justice may require.
It is so ordered.
MR. JUSTICE HARLAN was not present at the argument of this case,
and took no part in its decision.
