McNeal v. Gossard

74 P. 628, 68 Kan. 113, 1903 Kan. LEXIS 416

• Court: Supreme Court of Kansas
• Decided: December 12, 1903
• Docket: No. 13,352
• Status: Published

Opinion

The opinion of the court was delivered by

UuNNÍnghaM, J.:

If McNeal -was bound by the ■general appearance entered for him by his attorney, ¡(x. M. Martin, we need not consider the sufficiency of the Oklahoma service of notice to bring him in. He claims, however, that, as he authorized only a special appearance, anything beyond that did not bind him ■Or give the court jurisdiction over him. In the letters ■of the 17th and 23d- of May nothing was stated by McNeal that looked to the limitation of the right to ■enter a general appearance for him. That of the 17th called upon the attorney to defeat the motion to revive. That of the 28d indicated a method by which it could be defeated, to wit, the pleading of the statute of limitation, which, of course, if done, would be the entry of a general appearance. That of May 19 specially called upon the attorney to defeat the motion, but suggested the advisability of entering a special ..appearance. That of May 24 countermanded nothing that had been advised before, except what might -•be implied from the suggestion that McNeal would ■much rather have no appearance at all than to have a ■ general appearance entered for him. We do not see • from these letters, taken together, that the attorney ■ was at liberty to disregard one instruction more than ; another. What McNeal wanted was to defeat the ^motion to revive. If this could be done by specially pleading want of jurisdiction, well and good; if it could be done by pleading the statute of limitations, the same end would be accomplished.

But more than this, where the’ authority to the attorney is to enter a special appearance only, yet such attorney enters a general appearance for his client, the client is bound by such general appearance. Having procured and authorized the attorney to enter an- appearance, he was bound by the appearance, even though it was in excess of the authority conferred.' The client might be of the opinion that his purpose would best. be accomplished by a special appearance. The attorney to whom the accomplishment of this purpose is committed might think other-wise. Gould he excuse himself to his client if he failed to take the step best calculated, in his judgment, to guard the client’s interests? The object of the client in this case, was to defeat the allowance of the motion ; the method of accomplishing this object was committed to the attorney. The following authorities sustain this view Harshey v. Blackmarr, 20 Iowa, 161, 89 Am. Dec. 520; Hendrickson v. Hendrickson and others, 15 N. J. L. 102 ; Chambers v. Hodges, 23 Tex. 104 ; Kramer v. Gerlach, 59 N. Y. Supp. 855 ; 2 Encyc. of Pl. and Pr. 692.

It follows that, as the Barber county judgment was properly revived, there was no error in rendering-judgment thereon by the court below.

The judgment will be affirmed.

All the Justices concurring.