#### Branger vs. Buttrick and Hill.

Pbactice : *Second motion for new trial after first denied.*

"Where a motion for a new trial is denied, without any provision being asked for by counsel or inserted in fact in the order, that the motion maybe renewed, the mover cannot obtain a reconsideration of that order, after the expiration of the term, by a new motion based on the same grounds as his former one.

.APPEAL from tbe Circuit Court for *Iowa*County.

*451At tbe March term, 1870, of said court, a stipulation was entered into between tbe defendants in this action (who are attorneys at law) and the plaintiff’s.attorney, by which “ no action ” was to be “ taken by either party ” therein until the 5th of April of that year, and notice of trial was waived by both parties. On the 5th of said month of April, *Mr. Hill*telegraphed from Chicago, El., to Mr. Henry, of the firm of Henry & Smith, at Mineral Point, stating that he was sick and was a material witness in the cause, and asking Mr. Henry to procure a continuance of the cause. On. the 6th, the cause being reached, a motion for the continuance thereof was made by Mr. Smith of said firm, based upon the affidavit of Mr. Henry, which stated, in substance, that *Mr. Hill*resided in the city of Chicago, and that, as affiant was informed and believed, said *Hill*was a material witness for the defendants, and was prevented by sickness from being present at that term of court. The motion for a continuance was denied. On the 7th of said month of April, judgment was rendered against the defendants for $15,551.35. On the same day, a motion to set aside the judgment and verdict and for a new trial was made in behalf of *Mr.*Hill, by Messrs. Henry & Smith, who describe themselves therein as attorneys for said defendant for the purpose of making this motion only. The grounds for such new trial assigned in the motion are, that the cause was not at issue, and that no defense was made on the trial. The motion is based on “ the papers heretofore filed and the proceedings heretofore had” in the cause, and upon an affidavit of *Mr.*Hill, made at Chicago, Ill., on the 5th of April, which stated that the affiant was a material and necessary witness for the defense, and that by reason of sudden and severe illness he would not be able to attend to any business for several days. The motion for a new trial was denied; and afterwards an execution was issued, and certain property sold to satisfy the judgment.

At the June term following, *Mr. Hill*moved the court “ that the motion heretofore made herein for a new trial on the merits, *452be reconsidered, and tbat tbe defendants may be relieved from tbe order denying said motion for a new trial on tbe merits, and tbat tbe verdict rendered herein, and tbe judgment entered tbereon, be vacated and set aside, and for sucb other or further order in the premises as may be just and proper.” Tbe motion is based “ upon tbe papers and pleadings heretofore filed, and tbe pleadings heretofore bad ” in tbe cause, and upon tbe affidavits of *Mr. mil*and bis physician. Tbe former affidavit states tbat affiant has employed no counsel for himself in defending said action, but appears for himself therein; tbat in December, 1869, be caused to be served bis answer to tbe amended complaint in tbe cause; tbat tbe facts set up in said- answer are all within Ms knowledge, and be is tbe only witness by whom they can be proved; tbat be expects to testify to those facts, as a witness on tbe part of defendants, on tbe trial of *the*cause; tbat be is a necessary and material witness for defendants touching tbe' matters at issue in said cause; tbat be is thoroughly conversant with tbe facts in tbe cause, and tbat defendants have a good and substantial defense on tbe merits to tbe whole and every part of plaintiff’s demands: and tbat all and singular tbe facts stated in tbe answer on file to tbe amended complaint are true to affiant’s own knowledge. Tbe affidavit then recites tbe stipulation above mentioned, and states tbat, pursuant thereto, affiant made preparations for tbe trial of tbe cause, and fully expected to leave CMcago on tbe mormng of April 4th, so as to be present at tbe place of trial on tbe morning of tbe 5th; tbat on Sunday, tbe 3d of tbat month, be was taken violently sick, and on tbe 4th was advised by bis physician tbat be could not safely leave borne or attend to any business for some days, and tbat be then telegraphed to Ms friend Mr. Henry to obtain a continuance of tbe cause, etc. After reciting tbe proceedings on tbe motion for a continuance, tbe affidavit states tbat on tbe 5th of April affiant made tbe affidavit above described; tbat be was too ill to examine tbe books or tbe practice of tbe Wisconsin courts, and fully believed tbat said affidavit was suf*453ficient; tbat be caused tbe same to be mailed to Mr. Henry, for tbe latter to take such action as might be necessary; but tbat a verdict and judgment were rendered before Mr. Henry received said affidavit. After reciting tbe proceedings upon tbe former motion for a new trial, tbe affidavit further states tbat “ by reason of tbe excusable neglect of tbe affiant, and owing to bis sickness, and to tbe fact of bis being a material witness, and bis own counsel, and a party in tbe cause, said proceedings were bad and decided adversely against him.” So much of this affidavit as relates to tbe condition of affiant’s health at and about tbe time of tbe trial of tbe cause, was confirmed by tbe affidavit of bis physician.

Tbe court made an order awarding a *venire de novo*in tbe action, and directing “tbat tbe verdict of tbe jury to be hereafter impannelled to try this action shall stand and be tbe basis for tbe judgment herein, unless set aside by tbe court for good cause, and tbat in tbe meantime tbe judgment heretofore rendered shall stand until tbe said new trial shall be bad,” &c. Tbe order is made upon condition tbat defendants pay tbe costs of tbe previous trial within ninety days; and it further directs tbat if, upon tbe new trial, plaintiff shall recover a larger sum than at tbe first trial, be may, at bis option, set aside all proceedings under tbe present judgment, and have a a resale of tbe defendant’s property to satisfy such larger judgment; and if be shall recover a *less*sum, be shall not be required to set aside said proceedings unless defendants shall pay him tbe costs incurred in tbe sale made under tbe existing judgment.

From this order tbe plaintiff appealed.

*Moses M..*Strong, for appellant,

contended, 1. Tbat tbe action was *not pending*when tbe motion was made, final judgment having been rendered, a motion for a new trial denied, execution issued and property sold. 2. That tbe action being against tbe defendants as copartners, a new trial could not properly be granted on tbe motion of only one of them. 3. Tbat tbe question of a new trial was *res adjudicaia*by tbe denial of tbe first *454motion, made upon tbe same grounds. To this point be cited *Hungerford v.*Gushing, 8 Wis., 824; *Hill v.*Hoover, 9 id., 15 ; *Pierce v. Kneeland,*9 id., 28; *Cothren v.*Connaughton, 24 id., 134; *Greatheard v. Bromley,*7 Term, 455; *Schuman v. Weather-head, 1*East, 537; *Simpson v. Hart,*1 Johns. Ch., 91; *Willett v. Fayerweather,*1 Barb. (S. C.), 72; *Dodd v. Astor,*2 Barb. Ch., 395 ; *Pattison v. Bacon,*12 Abb. Pr. R., 142 ; *Bellinger v. Mariindale,*8 How. Pr. R., 113; *Lovell v. Martin,*21 id., 238; *Dollfus v. Frosch,*5 Hill, 493 ; *Allen v. Gibbs,*12 Wend., 202; *Mitchell v Allen,*12 id., 290 ; *Craig v. Bagby,*1 Monroe, 148 ; *Trible v. Frame,*3 id., 51.

*F. J. Hill,*respondent, in person.

[ No brief.]

The following opinion was filed at the January term, 1871.

DixoN, C. J.

It may be the misfortune of the defendant *Hill*that his attorneys should have moved for a new trial at the term in April, or that, having moved, and the motion proving unsuccessful, they should not have applied to, and obtained leave from the court at that time to renew the motion, making such permission a part of the order. As the case now stands, permission to renew or make another motion not having been reserved or granted when the first motion was overruled, it is obvious there can be no relief in the form of a second motion for a new trial, or other motion or proceeding of the same nature, based upon the same grounds upon which the first motion was made. Such is the precise character of this proceeding. The defendant moves the court to reconsider the first motion on the merits, and to relieve him from the order denying the same, and for a new trial on the merits of the cause. He does this after the term at which the first motion was heard, and upon the identical grounds upon which that motion was overruled. It is not a case of mistake, inadvertence, or surprise, or excusable neglect, within the meaning of the statute, R. S., ch. 125, § 38. If it were, then no order upon motion made by the party himself, represented by counsel who are present and heard, and who *455may, if deemed advisable, apply for and obtain leave to renew, would be *res adjudicata*and binding, and so one of tbe most salutary and best settled rules of law witb respect to tbe effect of sucb orders would be abrogated and lost. Tbe statute was never intended to apply to sucb a case, and tbe granting of tbe order by tbe court below was clearly irregular and wrong, within all tbe authorities, very many of wbicb, in tbis court and elsewhere, are cited by tbe learned counsel for tbe appellant.

*By the Court.*— Order reversed.

On a motion for a rehearing, *Mr. Hill*contended that tbe record showed only a request made of Mr. Henry to procure a continuance, and showed that Messrs. Henry & Smith bad no authority whatever to appear as bis attorneys for tbe purpose of moving for a new trial. 1. Tbe authority of an attorney may be questioned on motion, and by affidavit. *Harris v. Galbraith,*48 Ill., 309; *Standefer v.*Dowlin, Hemps., 209; *King v. Oliver,*2 Wash., C. C., 328. 2. A party for whom an attorney appears in court, without authority, is not concluded by tbe acts of sucb attorney, *Chritchfield v. Porter,*3 Ohio, 518; *Denton v. Noyes,*6 Johns., 297; 23 Ind., 348; *De Wolf v. Strader,*26 Ill., 225. 3. An attorney cannot delegate bis authority. *Hitchcock v. McGehee,*7 Porter, 556; *Johnson v. Cunningham,*1 Ala., 249; *Cornelius v. Nash,*Breese, 98; *Morgan v. Roberts,*38 Ill., 65. 4. Under these circumstances, tbe respondent bad a right to move for relief from tbe order and judgment, under sec. 38, cb. 125,R. S.

*Mr. Strong,*for tbe appellant, contended: 1. That tbe terms of *Mr. Hill’s*telegram to Mr. Henry, and of bis affidavit on tbe second motion, wbicb states that be caused bis affidavit of April 5th to be mailed to Mr. Henry, “ for said Henry to take sucb action in said matter as might be necessary,” sufficiently show an employment of said Henry, and constructively of tbe law firm of Henry *&*Smith, to perform any act as attorneys, wbicb, in their judgment, might be proper to defeat tbe entering up of a fmai judgment. 2. That tbe second motion was not based upon *456the ground that the first was made without authority, or was otherwise irregular; and it is too late *to take that*objection for the first time in this court.

The motion for a rehearing was denied at the June term, 1871.