
    McWHIRTER v. DONALDSON et al.
    No. 1984.
    decided August 23, 1909
    (104 Utah 731).
    1. APPEAL AND ERROR — DISCRETION OE TRIAL COURT- — VACATING— Default Judgment. The general rule is that a motion to vacate a default judgment on the 'ground of excusable neglect and permit the party against whom it is entered to plead to the merits is addressed to the discretion of the court, and, unless it appears that the discretion has been abused, the court’s ruling in vacating or refusing to vacate the judgment will not be disturbed on appeal. (Page 300.)
    2. Judgment — Default Judgment- — -Vacation — Excusable Ñeg- . lbct — Discretion oe Court. To bring a case within Comp. Laws 1907, section 3005, providing that the court may in its discretion upon just terms allow an answer to be filed after the statutory time, defendant must show due diligence to prepare and present his defense, that he was either prevented from doing so by some accident, misfortune, or circumstance over which he had no control, or that he was misled, or lulled into inaction, by the opposite party or his counsel, and, where on the day when plaintiff’s attorney filed notice of his withdrawal from the case, defendant’s attorney was informed by plaintiff that he proposed to push the case, and was informed by plaintiff’s new attorney on the same day that the attorney would not obligate himself to-continue in force a stipulation that defendants had entered into-with plaintiff’s former attorney extending the time for filing an answer, and that a default judgment was entered three weeks thereafter, defendant was not entitled to relief under the section (Page 302.)
    
      3. Stipulations — Necessity for Filing ob Entering on Minutes. Under Comp. Laws 1907, section 115, subd. 2, providing that an attorney shall have authority to bind his client by his agreement filed with the clerk or entered upon the minutes of the court and not otherwise, an oral stipulation to extend time for filing an answer which was neither filed with the clerk, nor otherwise made a matter of record, is of no legal effect. (Page 302.)
    4. Attorney and Client — Poweb of Attorney to Become Surety. Under Comp. Laws 1907, section 133, providing that no practicing attorney shall become surety in a suit in which he is engaged as attorney, attorneys at law cannot act in the dual capacity of surety and attorney in the same action. (Page . 304.)
    5. Attorney and Client — Oefice of Attorney — Nature. Attorneys at law are officers of the court, and it is their sworn duty to aid the court in seeing that actions in which they are engaged as counsel are conducted in a dignified and orderly manner, free from passion and personal animosities, and that all causes brought to an issue are decided on their merits only, and they must devote their ability, skill, and diligence along ethical and professional lines to the interests of their clients, and refrain from entering into any alliance or incurring any obligation connected with the litigation in which they are engaged as counsel that would place them im a position where their personal interests wiould be adverse to those of their .clients. (Page 304.)
    6. Judgment — Default Judgment — Vacating — Interposition of Unconscionable Defense. A default judgment will not be set aside to enable a party to interpose an unconscionable defense, and hence a default judgment for a sum lost by plaintiff at gambling will not be vacated to allow defendant to defend on the ground that he won the money according to the rules of the game played, which was in violation of the penal statutes; equity in such case leaving the complaining party yhere it finds him. (Page 306.)
    STRAUP, C. X, Dissenting
    Appeal from District Court, Third District; Hon. M. L. Ritchie, Judge.
    Action by William McWhirter against James Donaldson and others.
    Judgment for plaintiff. Defendant appeals.
    
      AFFIRMED.
    ' Thurman, Wedgwood & Irvine for appellant.
    
      James Ingehretsen for respondent.
    
      
       Cutler v. Haycock, 32 Utah 354, 90 Pac. 897; Aaron v. Holmes. 99 Pac. 450; Quealy v. Willardson, 35 Utah 414, 100 Pac. 930.
    
    
      
       Peterson v. Crosier, 29 Utah 235, 81 Pac. 860.
    
   McCABTY, J.

Tbis action was begun in tbe district court of Salt Labe County to recover for money bad and received. Tbe complaint was filed October 18, 1906, and’ on November 19,' 1906, summons was served on defendant James Donaldson. Tbe other defendants were not served witb process, nor did they appear in tbe action. On October 2, 1907, nearly a year after tbe service of summons, judgment by default was rendered in favor of plaintiff and against defendant Donaldson for tbe sum of $1353.38. On October 12, 1907, Donaldson moved tbe court to set aside tbe default and vacate tbe judgment, and permit him to file an answer which be presented in connection witb bis motion. He filed several affidavits, and introduced oral testimony in support of tbe motion. Counter affidavits were filed by plaintiff. Tbe court overruled tbe motion, and Donaldson appealed.

Tbe facts leading up to and surrounding the entry of default and tbe rendering of judgment thereon, and tbe grounds upon which Donaldson relied to have the judgment vacated and tbe case reopened, as shown by tbe files in tbe case and tbe affidavits presented' and the testimony introduced at the bearing on tbe motion, are as follows: On or about September 19, 1906, plaintiff, in company witb bis brother, Alexander McWhirter, visited a certain rooming bouse in Salt Lake City, Utah, and engaged in a game of cards called “stud poker” witb tbe defendant Donaldson. Tbe money sued for in tbis action was bet and lost by plaintiff and won by Donaldson. Tbe McWhirters employed M. P. Braffet, an attorney at law, to commence tbe action, and take whatever steps be might deem necessary to recover tbe money bet and lost on tbe game of cards referred to. Before tbe complaint was filed, it was discovered that certain moneys belonging to Donaldson could be attached and held to satisfy any judgment that the McWhirters might obtain against him. To enable the McWhirters to furnish the undertaking required in attachment proceedings, Braffet consented to become one of the sureties. It therefore became necessary, under section 133, Comp'. Laws ,1907, for the McWhirters to procure the services of some other attorney to prosecute the action which they were about to commence. Braffet, with the knowledge and consent of the McWhirters, made arrangements with Samuel Bussell, an attorney at law, to appear as attorney of record in the action which they were about to begin. Bussell' signed the summons and complaint as plaintiff’s counsel, copies of which were served on Donaldson. Immediately after the action was begun, an undertaking on attachment was filed in the case with Braffet as one of the sureties, and certain money $1025 belonging to Donaldson was attached. After Donaldson was served with summons and a copy of the complaint, he employed S. B. Thurman and S'. A. King, both of whom are attorneys of recognized ability, to take charge of and conduct his defense-. It is alleged by Thurman and King in their affidavits filed in support of the motion to set aside the default and vacate the judgment that Braffet represented to them that,' notwithstanding he had become surety on the attachment bond referred to, he nevertheless continued to remain in charge of the case for the McWhir-ters, and that “Bussell was the attorney of record in said cause, was acting for him as a. matter of courtesy, and was only the nominal attorney, and that said Braffet had the actual charge of the conduct of said cause.” Braffet made affidavit to the same effect. William McWhirter, plaintiff, in -an affidavit which he filed in opposition to the motion, says: “The suit was brought in my name by the said Samuel Bussell, and at that time, and ever since the commencement of this suit, I have understood that Samuel Bussell •was my attorney at law in the prosecution of this action.” Before the statutory time for filing an answer had expired, Thurman and King met Braffet,. and informed him that they were preparing an answer to plaintiff’s complaint on behalf of Donaldson, and that Braffet stated to them that he desired to- amend the complaint, and requested them to defer the preparation of their answer until after they had been served with an amended complaint, which they consented to do. It must be borne in mind, however, that Donaldson’s attorneys on this occasion consulted with Braffet well knowing that he was at the time one of the sureties on an attachment bond in the same action, and that Bussell was the attorney of record for plaintiff. And the record shows that they so recognized Bussell. On November 30, 1906, a little more than a month after the commencement of the action, a written notice was served on Bussell, which recited that defendant Donaldson would on November 30, 1906-, move the court to release the money theretofore attached in said cause. This notice, which was directed “to the plaintiff above named, and to his attorney, Samuel Bus-sell,” was signed by S. B. Thurman. Indorsed on the notice was the following acceptance: “Bece-ived copy of the foregoing notice this 30th day of November, A. D. 1906. [Signed] Samuel Bussell, Attorney for Plaintiff.” The money attached by plaintiff was upon Donaldson furnishing an undertaking as provided by section_3085, Comp. Laws 1907, released. S. A. Bing, one of Donaldson’s attorneys became surety on the undertaking. T-he order of court releasing the money was made and entered of record November 30, 1906. No further proceedings were had of record in the case until September 12, 1907. In the meantime the MeWhirters became dissatisfied. because of the delay in bringing the action to an issue, and on August 6, 1907, Alexander McWhirter paid Braffet for his services, and released him from further responsibility in the case. Braffet thereupon gave McWhirter a receipt, of which the following is a copy: “Bec’d of Alexander McWhirter the sum of fifty dollars in full settlement of all claims which I may have had pending against him up to this time, and I have m> further interest in any civil action or actions which he or his brother William may bring against any party or parties. This is not intended as a release of the claim of Samuel Russell for his services in pending suit. M. P. Braffet.” McWhirter decided “to have the case pushed more vigorously,” and with that object in view called upon Russell and consulted him in regard to1 the matter. Russell informed McWhirter that it was somewhat embarrassing for him to continue as attorney in the case, as he and S. A. King, one of Donaldson’s attorneys, occupied and used the same office, whereupon arrangements were made with Russell for his fee, and on September 12, 1907, Russell filed in the cause the following notice, a copy of which was served upon S. R. Thurman: (After title) “To Said Defendant James Donaldson and to His Attorney: You will take notice that the undersigned has and does hereby withdraw his appearance as attorney for plaintiff in the above entitled cause. Samuel RSussell. Salt Lake City, Utah, September 12, 1907.” The following acknowledgment of service is indorsed on the notice: “Received copy of foregoing notice this 12th day of September, 1907. Thurman, Wedgwood & Irvine, Attorneys for Defendant Donaldson.” As Me-Whirter was leaving Russell’s office on the occasion referred to, he met S. A. King, and King inquired of him what he was “going to do about the case.” King, in his affidavit, which was filed in the case in support of the motion to vacate and set aside the default, says: That he was adv-ised by McWhirter “that Mr. Russell would no longer act as counsel in this case, and that his connection with the same had been terminated;” that McWhirter also stated that James Ingebretsen had been employed as counsel for plaintiff in said cause; that he, King, immediately telephoned Ingebretsen, and desired to know if he had been so employed and at the same time stated to him that a stipulation existed extending the time for answering, and that he would like to have the benefit of the stipulation; that Ingebretsen answered that he had not been employed, but had been spoken to concerning the matter, all of which is admitted by Ingebretsen in his counter affidavit filed .in the case, but he also avers in his affidavit, which averment is not de-' Lied: “I replied that I had not been engaged and could not and would not obligate myself in any way, but that my hands must be free to take such action as might be directed by my clients.” He further recited in his affidavit “that he (Xing) then asked me whether I would notify him when I was employed, and I then and there expressly told him that I would make no promises, and would not obligate myself in any way until I was employed,” King, in his affidavit, says that Ingebretsen on this occasion promised that, in case he should be employed by the McWhirters, he would notify him, King, of such employment. No further conversation nor communication was had between Ingebret-sen and either of the attorneys for Donaldson. King at the time he claims to have had this understanding with Ingebret-sen was surety on the bond given by Donaldson to release certain funds hereinbefore mentioned which had been attached by plaintiff, and he was therefore, under section 133, Comp. Laws 1901, which we shall further on in the opinion again refer to and more fully discuss, disqualified from appearing or acting as attorney of record in the case. The ¡court, so long as this disqualification continued to exist, was not required to consider -any agreement that King might make with the McWhirters or their attorney out of court. About two weeks after the conversation last referred to, Alexander McWhirter employed Ingebretsen to appear as counsel for plaintiff. Ingebretsen inquired of Mc-Whirter if he knew of any stipulation in the action, and McWhirter answered that he did not, but that he would go and ask Mr. Russell if there were any. McWhirter then left the office, and in a few moments thereafter returned and stated that he had asked Mr. Russell if there were any stipulation extending the time to plead and answer, and that Russell had answered that he did not know of any such stipulation or understanding. Before taking the default, Ingebretsen made personal inquiry of Russell as to whether or not he had stipulated, or in any way agreed with the attorneys for Donaldson that the time for appearing and pleading on the part of Donaldson was, or should be, in any way extended, and Russell answered that he had made no such stipulation or agreement and knew of none to that effect. At the hearing on the motion to vacate the judgment Russell was called as a witness, and testified: “I have no knowledge of such a stipulation. I was not a party to it.” Counsel for Donaldson served and filed notice of “intention to move the court to vacate and set aside the default and judgment . . . heretofore taken in said cause and rendered against the defendant James Donaldson. Said motion will be based and made upon affidavits hereinafter served,” etc. No further nor additional motion, so far as the record discloses, was filed or made in the case.

The specific grounds upon which the motion is based are not set out in the notice. We assume, however, from the matters stated in the affidavits filed in support of the motion, and the manner in which counsel have discussed the subject-matter of the appeal in their printed briefs) that they base their right to have the default and judgment set aside upon one or more of the statutory grounds, namely, “mistake, inadvertence, surprise, or excusable neglect.” We think, however, in view of the matters set forth in the affidavits, that the only ground which can be urged with any degree of consistency is that of “excusable neglect.” No claim is made that the court was without jurisdiction, nor that the judgment is tainted with fraud, nor that it was illegally entered. The general rule is that a motion to vacate a judgment entered by default on the ground of excusable neglect and permit the party against whom it is entered to plead to the merits is addressed to the sound discretion of the court, and, unless it is made to appear that such discretion has been abused, the ruling of the court in vacating or refusing to* vacate the judgment will not be disturbed on appeal. (Cutler v. Haycock, 32 Utah 354, 90 Pac. 897; Aaron v. Holmes, 35 Utah 49, 99 Pac.. 450; Quealy v. Willardson, 35 Utah 414, 100 Pac. 930; 1 Black on Judgments, sec. 354; 6 Ency. Pl. and Pr. 202; 23 Cyc. 895.) Assuming, for the sake of argument, that respondent is not in a position to successfully challenge King’s right to appear and- act for Donaldson in the case at the time he claims to have had the understanding with McWhirter and Ingebretsen that' they would notify him.of Ingebretsen’s employment when made in time for him to file an answer before any further proceedings were had by plaintiff, still we do not think the showing made on the motion is sufficient to entitle Donaldson as a matter of right to have the judgment set aside and the case opened up on the ground of excusable neglect, or, for that matter, on any of the grounds mentioned in section 3005, Oornp. Laws 1907. It was nearly three weeks after Russell filed and served his notice of withdrawal from the case before the default was entered, and on the very day on which this notice was filed, King, in answer to an inquiry made by hint, was informed by Alexander McWhirter that he, referring to the case, “proposed to push it.” When King on the same day spoke to Ingebretsen about continuing in force the stipulation which he, King, had entered into with Braffet extending the time for filing an answer, Ingebretsen very pointedly and emphatically replied that he would not obligate- himself in any way, but that his hands must be free to take such action as might be directed by his clients. While King says in his affidavit that Ingebretsen agreed that hé would, when employed by the McWhirters, notify him, King, of such employment (which was denied by In-gebretsen), he does not pretend to say that Ingebretsen agreed to continue in force the stipulation extending the time for answering the complaint, nor that he said anything from which it could be reasonably inferred that he would consent to any further extension of time. But, on the contrary, what was said and done by McWhirter and Ingebret-sen clearly indicated that they intended to make every reasonable effort to bring the case to an issue at the earliest possible moment, and that they did not intend to further abide by the stipulation which was made with Braffet, who more than a month prior thereto had entirely severed his connection with the case. Therefore, the claim made by counsel for appellant that they were misled by what Me-Wbirter and Ingebretsen said or did in the premises is not well founded. In order for a party to bring a case within the provisions of section 3005, Comp. Laws 1907, he must show that he has used due diligence to prepare and present his defense, and that he was either prevented from doing so because of some accident, misfortune, or circumstance over which he has no control; or that he has been misled or lulled into inaction by some agreement or act of the opposite party or his counsel upon which he had a right to rely. This appellant has wholly failed to do. (Peterson v. Crosier, 29 Utah 235, 81 Pac. 860.) And, furthermore, section ¡115, Comp. Laws 1907, provides, so far as material in this action, that “an attorney and coun-sellor has authority . . . (2) to bind his- client in any of the steps of the action or proceeding by his agreement filed with the clerk or entered upon the minutes of the court, and not otherwise.”. The stipulation in question was neither filed with the clerk nor otherwise made a matter of record. Therefore appellant cannot claim anything for the stipulation, because, under the foregoing provisions of the statute, neither he nor his counsel had any legal right to rely upon it.

In the case of Borkheim v. N. B. & M. Ins. Co., 38 Cal. 623, the Supreme Court of California, in construing a statute identically the same as the one under consideration here, said:

“It declares such agreements null and void unless they are in writing and filed with the clerk or have been entered in the minutes of the court. Of such agreement, therefore, there can he no specific performance. To allow the court to enforce them, as was done in. this case, against the will or without the consent of the parties, is to allow the court to work the precise mischief which the statute was designed to prevent. Instead of being nullified in that way, the statute -ought to he strictly adhered to, for it is the dictation of wisdom. Without it the court would be frequently annoyed by disputes between counsel concerning their agreements, and thus forced to try innumerable side issues more perplexing than the case itself, attended, also, with delay to its business, and the detriment to the public service.”

In tbe case of Haley v. Eureka Co. Bank, 20 Nev. 410, 22 Pac. 1098, tbe construction of a like provision in tbe statutes of Nevada was involved. Tbe appeal in tbat case was from an order of tbe district court setting aside a default on tbe ground tbat it was entered in violation of an oral agreement between tbe parties wbicb was to tbe effect “tbat no default judgment or other proceedings should be bad or taken against them (defendants).” In tbe course of an elaborate opinion by Chief Justice Hawley, it is said:

“It was tlie duty of tide district judge to enforce the rule, and he erred in overruling the objections to the testimony in relation to the verbal stipulation. It is not a case where the question was left to his discretion. There was a positive statute, a rule prescribed and adopted by this court for the government of the district court which could not be disregarded. . . . They (the defendants) knew that such an agreement did not, under the statute and rule of court, have any binding effect. . . . They knew that in the condition in which the litigation was the plaintiff had the legal right to at any time apply to the clerk for a default. If his attorney refused to act, he could, as was done in Goben v. Goldsberry, supra (72 Ind. 46), have discharged him and employed another attorney and instructed him to have the default taken. . . . The shield furnished by the law was ample for the protection .of their rights, and, if they did not want a default to be taken, they should have availed themselves of its clear, wise, and beneficial provisions, instead of trusting to the uncertain memory of counsel or the instability of plaintiff’s professed friendship towards one of the defendants. In the application and enforcement of the statutory provisions, it has been held that a party is not authorized to rely upon an oral agreement of the opposing attorney for a new trial upon the ground of surprise; that it is a want of diligence to rely on a verbal stipulation which is not binding. Patterson v. Ely, 19 Cal. 35. . . . The order of the district court is reversed.”

In tbe ease of Martin v. De Loge, 15 Mont. 343, 39 Pac. 312, a district court set aside a default on tbe ground tbat it was taken in violation of an oral stipulation made out of court. There was a rule of tbe district court wbicb provided tbat no agreement between tbe parties or tbeir attorneys relating to any cause would be regarded by tbe court unless reduced to writing or made in open court and entered in the minutes thereof. On appeal the Supreme Court of Montana held that the rule, until rescinded or modified, is binding on the district court, and that the setting aside of the default was an abuse of discretion. The following cases also illustrate and declare the same doctrine: Reese v. Mahoney, 21 Cal. 306; Merritt v. Wilcox, 52 Cal. 238; Jones v. Menefee, 28 Kan. 436; Marsh v. Lasher, 13 N. J. Eq. 255; Goben v. Goldsberry, 12 Ind. 44.

Section 133, Comp. Laws 1907, provides that “no practicing attorney and counsellor shall become surety in any civil or criminal action, suit or proceeding which may be instituted in any of the courts of this state in which he is engaged as attorney.” Now, this statute ‘ means, if it means anything, that an attorney cannot act in the dual capacity of both surety and attorney in the. same action or proceeding. The purpose of the statute is manifest. Attorneys at law are officers of the court, and it is their sworn duty to aid the court in seeing that actions and proceedings in which they are engaged as counsel are conducted in a dignified and orderly manner, free from passion and personal animosities, and that all causes brought to an issue are tried and decided on their merits only. It is also the duty of an attorney to devote his ability, skill, and diligence along ethical and professional lines to the interests of his client, and to refrain from entering into any alliance or incurring any obligation connected with the litigation in which he is engaged as counsel that would place him in a position where his personal interests would be adverse to those of his client. While attorneys as a rule faithfully observe and fearlessly discharge these duties and obligations regardless of the effect that their actions in these respects may have on their own personal interests, yet experience has demonstrated that there are exceptions to the general rule, and that there are members of the legal profession who, when their own personal interests are involved in an action or proceeding in which they are acting as counsel, are apt to; and sometimes do, disregard these general duties which the law imposes upon them. Therefore, in order to prevent attorneys from having an undue interest in litigation in which they are employed as counsel, they are prohibited in this and many other jurisdictions either by 'statute or rule of court from becoming surety for their clients.

In Love v. Sheffelin & Co., 7 Fla. 40, a case often cited with approval by both courts and text-writers, it is said:

“A suitor of tlie court is entitled,' to a ,fair and impartial hearing, and to every facility consistent" with legal provision for the assertion and maintenance of his rights, or their defense and protection; this especially from the officers of the court. Suppose, however, that they connect themselves with one or other of the parties, hy signing a bond to maintain his Suit and discharge any liability that may devolve on them, to pay whatever judgment the court may award, what is their position, and that of the case? Is not this officer pledged by his fortune to "the suit to the side to which he has committed himself? Is not his personal influence drawn and forced into the same channel, and has not his adversary to encounter all this, either in defense or as complainant, in the assertion and maintenance of his rights? Is not the contest widened and extended by such action, and does it not henceforth cease to be between the original parties? We do not stop to consider the possibility of this influence being willfully exerted. There is no proof or suspicion of the kind in the case. It is sufficient that such action has the tendency to defeat and obstruct the course of justice, and may be 'pernicious and injurious to an extent not easily estimated.”

Tbe case at bar is a good, illustration, of the wisdom of the rule which precludes an attorney from becoming surety for his client. Braffet, in his testimony on the hearing of the motion to vacate the-judgment and set aside the-default, stated that -one reason why he delayed in filing an amended "complaint was that he desired to minimize his obligation as surety on the attachment bond. To quote him literally, he said: “It (the amendment) involved the question of the attachment, and I was on the attachment bond and had guaranteed the other surety, and wanted to minimize the amount of the obligation.” And again he said: “At the time of the filing of the • complaint, I was ■ not exactly satisfied to sue for this amount and was largely influenced by a desire to influence my own liability as surety on die bond and that the liability that I would incur under my guaranty of the other surety whom I had induced to join me.” It will thus be seen, according to Braffet’s own version of the matter, that his failure to file the contemplated amended complaint and bring the cause to' an issue was at least to some extent influenced by the personal obligation which he had incurred in the case by becoming surety on the attachment bond. The stipulation in question was not only in derogation of the statute, but Braffet, who entered into it on behalf of respondent, was at the time surety on the attachment bond hereinbefore mentioned which disqualified him from appearing as attorney of record in the case. We are therefore asked to give effect to1 an oral stipulation made with an attorney out of court, which, under the circumstances, the attorney could not have entered into in open court, without placing himself in a position where he could have been proceeded against for contempt of court. (Weeks on Attorneys, sec. 119; Husband Bros. v. Georgia S. & Fla. Ry Co., 3 Ga. App. 157, 59 S. E. 326.) A mere statement of the proposition is all that is necessary to refute and overturn any argument that can be* made in favor of it.

There is another reason why appellant is not entitled to have the case reopened. No principle of law is more firmly established, nor more strictly adhered to', than that which prevents the setting aside of a judgment to enable a party to interpose an unconscionable defense. (1 Black on Judgments, 348; 6 Ency. PI. and Pr. 189; 23 Oyc. 964.) In the answer tendered by appellant in connection with his motion to- vacate the judgment, it is alleged, among other things: That “Alexander MoWhir-ter then and there in the immediate presence of said plaintiff, William McWhirter, took a hand and engaged in said game of cards, and then and there played with this defendant for money, and then and there wagered upon the-result of said game. . . . That as a result of said game this defendant then and there won said money according to tbe rules of said game, and in accordance witb said rules then claimed and took possession of the' same.” It will thus be'observed that appellant seeks to; ifivoke the equitable powers of the court to enable him té retain the ill-gotten gains which he nefariously acquired b^ an open and flagrant violation of the penal statutes of this state. He does not come into court with clean hands. Ih, such'case equity gives no relief, but leaves the party where it finds him,

The judgment is affirmed, with costs.

THICK, L, concurs. STEATJP, C. L, dissents.  