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Mattingly's Bakery v. Milling Co.

Supreme Court of Mississippi, Division B
Feb 21, 1938
181 Miss. 198 (Miss. 1938)

Opinion

No. 33057.

February 21, 1938.

1. ATTORNEY AND CLIENT.

An attorney unauthorized by client to appear in action has no right to appear therein for his client, and his appearance without authority does not bind client.

2. ATTORNEY AND CLIENT.

The employment of attorney in one action does not of itself confer upon him authority to appear for client in a different action, regardless of how closely they may be related.

3. ATTORNEY AND CLIENT.

An attorney has no authority to accept or waive service of original process in action in or for which he has not been employed by client, and no process may be validly served upon him for client.

4. INJUNCTION.

Where a resident having an equitable defense to law action instituted by nonresident brings suit to enjoin prosecution of law action, nonresident's attorney may be joined as party defendant because of necessities of justice, or, if attorney is not specifically named as party defendant, notice and bill may be served upon him as a quasi-party defendant.

5. ATTORNEY AND CLIENT.

Where a resident having an equitable defense to nonresident's law action has brought suit to enjoin prosecution of law action and has served process or notice of injunction suit on nonresident's attorney, attorney's employment to prosecute original law action embraces authority to take necessary steps to resist any defenses and includes right to resist injunction.

6. ATTORNEY AND CLIENT.

Where attorney for nonresident suing a resident has been served with process or notice of resident's suit to enjoin prosecution of nonresident's law action, attorney is not concerned with any demand over by resident, and his appearance is of no effect except as a party or quasi party to defend to the extent that injunction presents obstacle to original action.

7. JUDGMENT.

Where attorney for nonresident corporation maintaining law action against residents was served with notice of residents' suit to enjoin prosecution of law action, attorney's appearance in injunction suit did not entitle residents to an adjudication of their demand over against nonresident corporation, in absence of any service of process against it or any authorization by it of attorney's appearance for it in injunction suit.

APPEAL from the chancery court of Forrest county. HON. BEN S. STEVENS, Chancellor.

R.L. Bullard, of Hattiesburg, for appellant.

A lawyer is an officer of the court. His acts in court are official. His appearance for the defendant was an official act, solemnly and deliberately done, and attested by the court. It was distinctly erroneous for the court to permit him to impeach his own deliberate, official act.

He did have authority to appear for the defendant. The defendant had employed him, through its proper agency, to collect its note by such means and proceedings as were proper. He filed the suit for it. When an attempt was made to stop and defeat that suit by injunction, he had not only authority to do what he could to prevent that, but it was his duty to do it in the absence of instruction to the contrary. If he had suffered his client's claim in his hands to be destroyed in that manner, would he not have been liable to his client for having neglected it?

To me it is a new and strange thing for the same lawyer to appear in the same case both as attorney for his client and as amicus curiae.

Clearly, the defendant acted, after the third of July, on the supposition that what it was doing would compel the plaintiffs to go to Minnesota to sue it, or lose their demand. That the defendant did at its peril; and we submit that the final decree ought to be reversed, the motion for a decree pro confesso sustained, and the cause remanded for hearing on the bill and decree pro confesso, which the lower court ought to have done. If, as the defendant's lawyers says in testimony, the bill is insufficient, that is a matter which will be considered then; even if no demurrer was filed to the bill.

Heidelberg Roberts, of Hattiesburg, for appellee.

This court has aligned itself with a great many other courts in holding that an amicus curiae motion is proper under an appropriate state of facts. If there was any appearance at all in this case, it was the amicus curiae appearance made by M.M. Roberts. This did not submit or subject the Sparks Milling Company to the jurisdiction of the Chancery Court of Forrest County, Mississippi. The process served upon M.M. Roberts as attorney for the Sparks Milling Company as of the 25th day of June, 1937, is not sufficient to bring the Sparks Milling Company into court.

Columbia Star Milling Co. v. Brand, 115 Miss. 625, 76 So. 557.

The assistance of an amicus curiae may be requested by the court of its own motion, or he may interfere voluntarily by statement in open court or by motion in writing, or by affidavit. With the consent of the court an amicus curiae may make argument and may introduce evidence; or the court itself may call witnesses before it and examine them as to the truth of the matters thus brought to its attention.

2 C.J. 1326, par. 11-A.

The court will remember that this suit originated with a view of restraining Messrs. Heidelberg Roberts as attorneys from prosecuting a suit at law pending in the County Court of Forrest County, Mississippi, where the Sparks Milling Company was plaintiff and the Mattingly Bakery was defendant. The only process to issue was a mere notice to appear before the Chancellor in vacation at nine o'clock a.m. on Saturday, July 3, 1937. This process was executed only by delivering a copy to M.M. Roberts who is alleged in the officer's return to be attorney for the Sparks Milling Company. This cannot be dignified as that of a summons. It is nothing more than a notice, and is not sufficient to authorize a decree pro confesso.

Joyner v. Bank, 71 Miss. 382, 14 So. 469; Sheffield v. Friedberg, 84 Miss. 188, 36 So. 242.

A foreign corporation is not subject to suit in this state unless it is found doing business within the bounds of the state.

Section 4166, Code of 1930.

It cannot be successfully contended by our opposition that the Sparks Milling Company was doing business in the State of Mississippi at the time when the claims, if any the complainants have, occurred or accrued, and it cannot be shown, and has not been shown, that the Sparks Milling Company has at any time since then been found doing business in the State of Mississippi.

It cannot be said that process can be served upon a non-resident individual by obtaining service of process upon an attorney representing the non-resident defendant in the prosecution of a suit at law. The most that could be said of said attorney in the handling of the claim for the non-resident would be that he was attending the court for the non-resident defendant for the prosecution of said suit. This would not make him such an agent for the company as that he could be identified as a process agent. Our court has inferentially stated that suitors attending court outside of the territorial jurisdiction of their residence, are immune from service of civil process while attending court and for a reasonable time before and after, in going to court and returning to their homes.

50 C.J. 547, secs. 226, 227; Arnett v. C.C. and F.R. Smith, 142 So. 478, 165 Miss. 53.

An attorney for a plaintiff cannot be served with process in a cross action by persons other than the defendant in the main action.

Kimball v. Sweet, 170 Mass. 538, 51 N.E. 116; Higgins v. California Prune Apricot Growers, Inc., 282 Fed. 550.

In other words, in so far as the county court suit was concerned, attorneys could be served with notice which would affect their right to prosecute said suit, but this would not in any way affect the rights of the principal defendant respecting matters outside of and foreign to the suit pending in the said county court and which was affected by the injunctive proceeding.


Appellee, a nonresident corporation, instituted an action at law against appellants in the county court on a note for $75. Soon thereafter appellants filed suit in the chancery court against appellee to enjoin the prosecution of the action in the county court, averring that appellants had an equitable set-off against said note of $75, and, in addition, an equitable demand over in the sum of approximately $6,000. When the chancery bill was presented to the chancellor, he ordered a citation to be issued to the plaintiff in the law action, defendant in the chancery suit, notifying the plaintiff or its attorney to appear, if desired, to show cause, if any, why the temporary injunction as prayed should not issue. This citation was served on the attorney for plaintiff in the law action, but upon him alone, and he appeared and asked time to prepare and file a demurrer to the bill in chancery, for which a week's time was granted. Before the end of the week, appellees nonsuited their law action and paid all costs therein. This being made known to the chancellor, he held that there was nothing further before the court upon which an injunction could operate and he declined to order the writ.

When term time came on appellants moved for a decree pro confesso on their injunction bill, contending that they were entitled to have the court hear, determine, and adjudicate their said demand over; that they were entitled to such hearing, determination, and decree because the attorney for the plaintiff in the law action had appeared at the preliminary hearing in the chancery suit; and that thereby the nonresident corporation was in court for all purposes and for a full adjudication in the suit in chancery. No service of process was ever had on the nonresident corporation, by publication or otherwise; and it is shown by the undisputed proof that the attorney had no express authority from the milling company to appear for it in the chancery suit.

For want of service on the milling company the chancellor declined to grant the decree pro confesso, and the original action having been dismissed as aforesaid, the chancellor held that there was nothing further before him except to dismiss the second suit, which he did, and from this the complainants in that suit appeal.

Three propositions of law, which lie at the threshold, may be considered as settled: (1) An attorney who is not authorized by his client to appear in an action or suit has no right to appear therein for his client, and if he do so without such authority, his action has no effect to bind his client in any respect whatever. Hirsch Bros. Co. v. Kennington Co., 155 Miss. 242, 124 So. 344, 88 A.L.R. 1. (2) The employment of an attorney in one action or suit does not of itself confer upon him the authority to appear for the client in another and a different action or suit, no matter how closely related the two suits may be. Scarborough v. Bradley, Tex. Civ. App., 256 S.W. 349; see, also, notes, 132 Am. St. Rep. 150. (3) An attorney has no authority to accept or waive service of original process in an action or suit in or for which he has not been employed by the client, 7 C.J.S. Attorney and Client, p. 905; and, consequently, no such original process may be validly served upon him for his client.

But there are a few apparent, although not real, exceptions to the rule last stated, and one of these is where a nonresident not subject to original process in this state has instituted here an action at law against a resident, or other person, and the resident or other person has an equitable defense to the action. The equitable defense not being available in the law action, resort must be had to chancery by a bill to enjoin the prosecution of the law action. To such an injunction bill, the principal being a nonresident, it has long been settled as a proper practice to join as a party defendant the attorney who is prosecuting the action sought to be enjoined, the allowance being one founded in the necessities of justice. Or if the attorney be not specifically named as a party defendant, the notice of the bill has been allowed nevertheless to be served on him as a quasi-party defendant, under the same rule of necessity; and because also the writ when issued is allowed to run, as is not unusual in injunction writs, against all persons who are taking part in or who are in immediate control of the action or actions against which the injunction is directed, and this would, of course, include the attorney, or any attorney whom the plaintiff in the law action might subsequently employ.

Since the notice of the injunction suit or the process therein may be served on the attorney as a party or quasi-party defendant, he has the right to appear and defend, in so far as the injunction suit presents any obstacle against the prosecution of the action at law wherein his employment and authority as such exists. His employment to prosecute the original action at law embraces the authority to take all the necessary and clearly proper steps to resist any and all defenses made therein; and since an injunction suit against the prosecution of the original action would, if the injunction be allowed, operate as effectively and completely to defeat the original action as would a defense made in that action itself, the attorney when so notified or served in the injunction suit, and being as aforesaid a party or quasi-party thereto, would have the same right to resist the injunction, but only as to the injunction, as he would to resist defenses made in the original action.

But the service of notice or process on the attorney in such an injunction has never been allowed under our practice to be made the basis of a demand over against the client, as is attempted to be accomplished here by appellants. The attorney in the original action has no agency or authority except to prosecute that action and ward off defenses to it. If the second suit contained no prayer for injunction, the attorney in the first suit would have nothing to do with it, whatever its other demands might be. With any demand over, the attorney in the first suit has no concern, unless that demand over could be made in the original action. Any service of notice or process for a demand over made upon the attorney in a different suit than the original action would be upon an agent without legal or conventional authority which extended that far, and, necessarily, as to that extent would be wholly ineffective. The appearance by the attorney could have no effect beyond what has been above stated, namely, as a party or quasi-party to defend only to the extent that the injunction, and the injunction alone, presents any obstacle to the original action, and his appearance is to be considered as that of himself as a party or quasi-party defending the injunction alone as it bears, or is sought to be made to bear upon him, and against the performance of his employment and duties in the original action, not an appearance of or for the principal defendant unless the attorney be specially therein authorized, and, as we have already mentioned, the attorney was not here so specially authorized. Any further allowance upon the rule would run beyond all conservative boundaries, and would be in danger of collision with the constitutional requirement of due process.

The action of the trial court was in accordance with these views, and the decree will be affirmed.

Affirmed.


Summaries of

Mattingly's Bakery v. Milling Co.

Supreme Court of Mississippi, Division B
Feb 21, 1938
181 Miss. 198 (Miss. 1938)
Case details for

Mattingly's Bakery v. Milling Co.

Case Details

Full title:MATTINGLY'S BAKERY v. SPARKS MILLING CO

Court:Supreme Court of Mississippi, Division B

Date published: Feb 21, 1938

Citations

181 Miss. 198 (Miss. 1938)
179 So. 271

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