(30 Kan. 106)

ROBERT M. REYNOLDS

v.

W. J. FLEMING.

Filed June 8, 1883.

1. A judgment resting upon the unauthorized appearance of an attorney at law is void.

2. The appearance in an action by an attorney at law for a defendant, whom he professes to represent, is presumed to be authorized until the contrary is shown, and it devolves upon the defendant impeaching this authority to show by positive proof that such appearance is invalid; and while all the presumptions are in favor of a finding of the trial court that the appearance of the attorney at law is binding upon the defendant, yet if the uncontradicted evidence established that the attorney appeared for the defendant without his knowledge or authority, express or implied, and that the defendant never ratified the act of the attorney, and promptly disavowed it, such finding is without support.

Error from Jackson county.

The

On the twentieth day of September, 1880, W. J. Fleming commenced an action against William C. Reynolds and Robert M. Reynolds upon two promissory notes,-one dated July 1, 1879, executed by William C. Reynolds, for $86.20, due three months after date, for work done on a dwelling-house situated upon certain real estate in Jackson county, belonging to Robert M. Reynolds; the other dated July 9, 1879, executed by William C. Reynolds, for $359.80, due six months after date, for building material used in the construction of the dwelling-house and improvements on the same real estate. petition also set forth the filing of a mechanic's lien to secure the labor done and the material furnished, and prayed for a foreclosure of the lien and a sale of the real estate therein described. No service of summons, actual or constructive, was had upon Robert M. Reynolds, but on December 17, 1880, one J. S. Hopkins, an attorney at law, of Holton, Jackson county, filed an answer in the action and signed himself as attorney for R. M. Reynolds, which answer contained an admission that R. M. Reynolds was the owner of the real estate described in the petition, and a general denial of all the allegations of the petition, and also alleged that William C. Reynolds was not the agent of Robert M. Reynolds at the time of the alleged contract for the furnishing of the material and work done, or at the time of the execution and delivery of the notes sued on, and also alleged that he had never been his agent to execute the notes, or to have any work or labor performed upon the premises, or to contract for the same. And the answer further alleged that William C. Reynolds had no right, title, or interest to the lands described in the petition except the right to cultivate the same for his own use, and to remain thereon as long as Robert M. Reynolds consented. On the twelfth day of June, 1882, the action came on for trial. The plaintiff appeared in person and by his attorneys, Broderick & Rafter. Judgment was

rendered in favor of the plaintiff against the defendant, William C. Reynolds, for the sum of $519.60 and costs. It was further adjudged that the amount of the judgment was a lien upon the premises, and a decree was entered ordering the same to be sold to satisfy the judgment, interest, and costs. On November 6, 1882, R. M. Reynolds filed his motion to set aside and vacate the judgment as to himself for the alleged reason that the court had no jurisdiction over his person or property, because as he alleged, he had never been. served with summons, either actual or constructive, and never entered any appearance. This motion was heard at the November term of the district court for 1882, and the court made and filed the following findings of fact:

(1) That on the twentieth day of September, 1880, W. J. Fleming commenced an action to foreclose a mechanic's lien on the south-east quarter of the south-east quarter of section twenty-one, (21,) township five, (5,) range sixteen, (16,) and at the June term, 1882, he recovered a judgment against William C. Reynolds, which judgment is declared a lien upon the lands (which legal title of said lands was in Robert M. Reynolds) for the sum of five hundred and nineteen 60-100 dollars, ($519.60,) and a decree ordering the lands above described to be sold, and the proceeds of said sale to be applied on said judgment and the costs of this action.

(2) That the said R. M. Reynolds was not served with summons in said action.

(3) That he is a non-resident of the state of Kansas, and that no service was obtained by publication, as required by law.

(4) That the said Robert M. Reynolds appeared in said action by John S. Hopkins, his attorney.

And thereupon the court held, as a conclusion of law, that the court had jurisdiction of the person of R. M. Reynolds. R. M. Reynolds excepted to the findings of fact and conclusions of law, and also to the overruling of his motion to vacate the judgment, and brings the case here.

Keller & Osterhold, for plaintiff in error.

Hayden & Hayden and Broderick & Rafter, for defendant in error.

HORTON, C. J. The evidence introduced upon the hearing of the motion of Robert M. Reynolds to set aside and vacate the judgment rendered against him on the twelfth of June, 1882, material for our consideration, is in brief: That John S. Hopkins, an attorney at law, in a conversation with Case Broderick, one of the attorneys of W. J. Fleming, about the time the action of Fleming against Reynolds was commenced, said to Broderick to save the expense of publication, and he thought that Robert M. Reynolds would enter an appearance; that Hopkins filed an answer in the case for William C. Reynolds, and

on December 17, 1880, filed another answer, and signed himself as attorney for R. M. Reynolds; that he filed the answer for William C. Reynolds because the latter requested him to attend to the matter for him; that William C. Reynolds told him to stop proceedings against his brother, but, at the same time, said he was not the agent for his brother, and had no authority to contract for him; that after he filed the answer, to which he attached his name as attorney for R. M. Reynolds, he sent a copy of it to R. M. Reynolds, at Washington, District of Columbia, but Reynolds never returned this copy; instead thereof, he sent Hopkins a letter, in which he informed him he had not authorized his brother to act for him, and that he refused to have anything to do in the matter; that after Hopkins received this letter from Robert M. Reynolds, which was shortly after sending him a copy of the answer, and before the trial, he told Broderick he had nothing further to do with the case, and that he would not appear further for Robert M. Reynolds. Hopkins also testified that he said to Broderick, before the trial, he had better proceed to get service by publication. Broderick testified that Hopkins told him the reason he had nothing further to do with the case was on account of fees, and he did not recollect that Hopkins said to him anything about publication subsequent to the filing of the answer. William C. Reynolds testified that he advised his brother, Robert M. Reynolds, of the commencement of the suit, soon after it was commenced. Robert M. Reynolds testified that he owned the real estate decreed to be sold to satisfy the judgment rendered on said June 12th, and that he resided at Washington, District of Columbia; had lived there for four years, but was in Kansas some time in 1879; that he never employed William C. Reynolds, his brother, to act as his agent in getting legal advice or counsel, or to employ an attorney in the action of W. J. Fleming against himself; that he never filed an answer in the case, or authorized any one to make answer for him; that he utterly refused to make answer to the proceeding, and that the answer filed by Hopkins was done so without his authority or knowledge or consent; that when he received a letter from Hopkins, inclosing a paper to be signed as an answer in the case, he promptly replied by saying he utterly refused to become a party to the proceedings, and refused to sign or return the paper; that he then notified Hopkins he could not recognize him as his attorney in the case, and since that time he has never written to him or spoken to him about the matter; that Hopkins has not presented his bill for alleged legal services, and that he had not paid him in any way whatever; that he was never notified by Hopkins that he had filed any paper in the proceeding as his agent or attorney, and at no time did Hopkins apprise him of his appearance for him; and that he did not understand an answer was filed in the case until apprised of it by Keller & Osterhold, attorneys at law, subsequent to the rendition of the judgment; that the first notice he had of the judgment against himself was the notice in a

newspaper, sent him by some person unknown, that the land was to be sold by the sheriff of Jackson county; that subsequently he received a copy of a like notice from his brother. The evidence of Robert M. Reynolds was introduced by deposition, and the statements therein contained that the voluntary appearance by Hopkins in the action for said Reynolds was unauthorized, and that he had no knowledge of the filing of the answer in his behalf prior to the rendition of the judgment, were uncontradicted.

Applying the law, as we understand it, to the facts established upon the hearing of the motion, the court below should have sustained the motion and vacated the judgment. In this state it is held. that a judgment rendered without jurisdiction is void; that a personal judgment, rendered without notice to the defendant, is rendered without jurisdiction, and is consequently void; that a judgment void for want of notice may be set aside on a motion made therefor by the defendant; and that this may be done in cases where it requires extrinsic evidence to show the judgment was rendered without notice and without jurisdiction. Section 575 of the Code. Butcher v. Bank, 2 Kan. 70; Ry. Co. v. Streeter, 8 Kan. 133; Foreman v. Carter, 9 Kan. 674; Hanson v. Wolcott, 19 Kan. 207. See, also, Mastin v. Gray, Id. 458. The authority of an attorney to appear for the party whom he professes to represent is presumed until the contrary is shown, and it devolves upon the party impeaching the authority to show by positive proof that it is invalid. In some of the states, and in many of the early decisions, it is held that the appearance of an attorney for a defendant, even without authority, is deemed sufficient to give the court jurisdiction over his person, and upon such appearance the court will proceed to judgment, and leave the defendant to his remedy against the attorney, unless the attorney is insolvent, or appears under suspicious circumstances, or through the procurement of the plaintiff. But the better authorities uphold the doctrine that any judgment rendered without jurisdiction, when assailed directly, may be impeached, and that in doing so anything contained in the record purporting to give or prove jurisdiction, as the appearance of an attorney, may be contradicted by any evidence, extrinsic as well as intrinsic, and may be shown to be untrue and false.. Mastin v. Gray, supra. In this case the appearance of an attorney was impeached by a motion in the court rendering the judgment, and the motion is in the nature of a direct proceeding attacking it. If the attorney Hopkins appeared for R. M. Reynolds without his knowledge or authority, express or implied, he ought not to be bound by the act, if never ratified, and promptly disavowed; and as Robert M. Reynolds was never served by summons or by publication, the court had no jurisdiction of his person, unless jurisdiction was given by the appearance of the attorney; and if the appearance of the attorney was unauthorized, the judgment obtained thereon, within the later decisions, is void.

DILLON, J., speaking for the court, in Harshey v. Blackmarr, 20 Iowa, 161, said: "Certain it is, however, that the party is entitled to relief when an unjust judgment, though a domestic one, has been rendered against him by fraud or collusion, or by the appearance of an unauthorized attorney, if the party seeks the relief by appeal or motion promptly, and has been guilty of no laches."

In Shelton v. Tiffin, 47 U. S. 163, (6 How. 163,) it was decided: "Where a citizen of Virginia sued in the circuit court of Louisiana two persons jointly, one of whom was a citizen of Louisiana and the other of Missouri, and an attorney appeared for both defendants, the citizen of Missouri was at liberty to show that the appearance for him was unauthorized. If he showed this he was not bound by the proceedings of the court, whose judgment, as to him, was a nullity.” In Critchfield v. Porter, 3 Ohio, 518, it was held "that when an attorney appears for a party in a suit in court without authority, the party is not concluded by his acts, but may be relieved against them." And in the opinion supporting this declaration of law it was said by SHERMAN, J.: "The mischief that might follow from holding that the acts of the unauthorized attorney are conclusive upon the person for whom he appears, would induce the court to hesitate long before it would establish such a rule. It would in some degree subject the property of every individual in the community to the mistakes or malice of a particular class of men." See, for authorities of like tenor, Lawrence v. Jarvis, 32 Ill. 304; Arnott v. Webb, 1 Dill. 362; Price v. Ward, 1 Dutch. (N. J.) 225; Fennywit v. Foote, 27 Ohio St. 600; Dobbins v. Dupree, 39 Ga. 394; Wiley v. Pratt, 23 Ind. 628. See, also, Weatherbee v. Weatherbee, 20 Wis. 526; Ferguson v. Crawford, 70 N. Y. 253; Clark v. Little, 41 Iowa 497; Mastin v. Gray, supra.

Counsel for Fleming contend that one co-defendant may employ an attorney for the other co-defendant, and the appearance by such an attorney for all will bind all. Certain Vermont cases are referred to as sustaining this doctrine. The cases are based upon the decision in Scott v. Larkin, 13 Vt. 112. Therein it is said: "One defendant in an action ex contractu is permitted by the court to defend for his co-defendant. At common law and by our practice, except under the late statute, each defendant in actions ex contractu must defend for all. He may, in the absence of instructions to the contrary, employ counsel, enter appearance, plead, and defend fully for all. And even where one defendant is defaulted, if the other defendants succeed in their defense, judgment must be arrested on the default." This authority is not of any force under the statutes and practice in Kansas. In this state all contracts which are by the common law joint only, are joint and several, and suits may be prosecuted against any one or more of those who are liable, and judgments may be given for or against any one or more of several plaintiffs, and for or against v.1, no. 1-5