Albert Hass Lumber Co. v. Gibson

Supreme Court of Alabama

Albert Hass Lumber Co. v. Gibson

54 So. 994, 172 Ala. 111, 1911 Ala. LEXIS 163

CourtSupreme Court of Alabama

DecidedApril 20, 1911

StatusPublished

Cited by11 cases

This text of 54 So. 994 (Albert Hass Lumber Co. v. Gibson) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Albert Hass Lumber Co. v. Gibson, 54 So. 994, 172 Ala. 111, 1911 Ala. LEXIS 163 (Ala. 1911).

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Opinion

ANDERSON, J.

The interrogatories were served on one of the plaintiff’s attorneys of record, and such service ivas authorized by the statute. — Section 4050 of the Code of 1907; Jackson v. Hughes, 6 Ala. 257; Gain Lumber Co. v. Standard Co., 108 Ala. 346, 18 South. 882.

Section 4055 is as follows: “If answers to the interrogatories are not filed Avithin thirty days after service of a copy of the interrogatories, or Avhen the ansAvers are not full, or are evasive, the court may either attach the party and cause him to ansAver fully in open court, or tax him Avith so much costs as may be just, and continue the cause until full answers are made, or direct a non-suit or judgment by default or decree pro confesso to be entered, or render such judgment or decree as would be appropriate if such defaulting party offered no evidence.” The plaintiff, not having answered the interrogatories, was taxed with the cost, and the case was continued, and an order made requiring the payment of the cost and the ansAvering of the said interrogatories within 90 days. This action of the trial court was not only authorized by the statute but the penalty imposed was almost, if not quite, the lightest penalty authorized for the default.

The order being authorized and reasonable, the court had the inherent power, at the next term, to dismiss for a noncompliance with the said order". Courts would indeed be helpless if they had no power to compel obedience to reasonable and .authorized orders, and the Avlieels of justice would be clogged if suitors were permitted to defy orders and re\rel in defaults and con[114]*114tempt. Moreover, the judgment dismissing the cause shows the presence of counsel, and it does not appear, from any part of the record, that there was an objection or exception to the action of the court.

It is not denied that the plaintiff’s counsel had notice of the interrogatories, or of the terms imposed for the plaintiff’s default; but the appellant’s contention is that the attorneys negligently failed to notify it, either as to the interrogatories or of the order of the court. “The rule of law is unquestioned that notice to an attorney, while in the employment or service of his client, of facts connected with the business in which he is engaged, operates as notice to the client.” — Price v. Carney, 75 Ala. 546; Wiley v. Knight, 27 Ala. 336. “An attorney being an agent, duly authorized, his acts are those of his client. The client is therefore bound by all of the acts of his attorney in the course of legal proceedings, in the absence of fraud or collusion, and he cannot plead the negligence of his attorney as a ground for relief.” — 3 Am. & Eng. Ency. of Law, 324, and many cases cited in note 5. The motion for a new trial is not grounded on fraud or collusion, even if this would be the proper forum for relief, but upon the mere neglect of counsel in failing to notify the plaintiff of the different steps taken in the progress of the cause that they had brought and which said attorneys had been employed to bring and prosecute. The plaintiff must redress its grievance, if any it has, against the attorneys, and not this defendant. — 3 Am. & Eng. Ency. of Law' 325-379.

The judgment of the circuit court is affirmed.

Affirmed.

Simpson, Sayre, and Somerville, JJ., concur. •

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ANDERSON, J.

The interrogatories were served on one of the plaintiff’s attorneys of record, and such service ivas authorized by the statute. — Section 4050 of the Code of 1907; Jackson v. Hughes, 6 Ala. 257; Gain Lumber Co. v. Standard Co., 108 Ala. 346, 18 South. 882.

Section 4055 is as follows: “If answers to the interrogatories are not filed Avithin thirty days after service of a copy of the interrogatories, or Avhen the ansAvers are not full, or are evasive, the court may either attach the party and cause him to ansAver fully in open court, or tax him Avith so much costs as may be just, and continue the cause until full answers are made, or direct a non-suit or judgment by default or decree pro confesso to be entered, or render such judgment or decree as would be appropriate if such defaulting party offered no evidence.” The plaintiff, not having answered the interrogatories, was taxed with the cost, and the case was continued, and an order made requiring the payment of the cost and the ansAvering of the said interrogatories within 90 days. This action of the trial court was not only authorized by the statute but the penalty imposed was almost, if not quite, the lightest penalty authorized for the default.

The order being authorized and reasonable, the court had the inherent power, at the next term, to dismiss for a noncompliance with the said order". Courts would indeed be helpless if they had no power to compel obedience to reasonable and .authorized orders, and the Avlieels of justice would be clogged if suitors were permitted to defy orders and re\rel in defaults and con[114]*114tempt. Moreover, the judgment dismissing the cause shows the presence of counsel, and it does not appear, from any part of the record, that there was an objection or exception to the action of the court.

It is not denied that the plaintiff’s counsel had notice of the interrogatories, or of the terms imposed for the plaintiff’s default; but the appellant’s contention is that the attorneys negligently failed to notify it, either as to the interrogatories or of the order of the court. “The rule of law is unquestioned that notice to an attorney, while in the employment or service of his client, of facts connected with the business in which he is engaged, operates as notice to the client.” — Price v. Carney, 75 Ala. 546; Wiley v. Knight, 27 Ala. 336. “An attorney being an agent, duly authorized, his acts are those of his client. The client is therefore bound by all of the acts of his attorney in the course of legal proceedings, in the absence of fraud or collusion, and he cannot plead the negligence of his attorney as a ground for relief.” — 3 Am. & Eng. Ency. of Law, 324, and many cases cited in note 5. The motion for a new trial is not grounded on fraud or collusion, even if this would be the proper forum for relief, but upon the mere neglect of counsel in failing to notify the plaintiff of the different steps taken in the progress of the cause that they had brought and which said attorneys had been employed to bring and prosecute. The plaintiff must redress its grievance, if any it has, against the attorneys, and not this defendant. — 3 Am. & Eng. Ency. of Law' 325-379.

The judgment of the circuit court is affirmed.

Affirmed.

Simpson, Sayre, and Somerville, JJ., concur. •

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54 So. 994, 172 Ala. 111, 1911 Ala. LEXIS 163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albert-hass-lumber-co-v-gibson-ala-1911.

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