Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-07-05
A DECISION Filled.
The Supreme Court Files Its Decision
In the Divorce Case OF NickeIls
vs.. Nickells.
Geo. H. Winters Of Nelson County
Appointed State Land Com
missioner.
General Improvement About the
Capital City-Various Items
of Local News.

o"pANU' olCJ VdIlOuS iLtluS =
of Local News.
From Thursdays Daily
n, The Nickells Case.
The supreme court filed a decision in
the Nlckells divorce case today, reversing
the order Of the trial court, and remand
ing the action for a new trial. The case
is an important and interesting one, in
volving a question as to the rights of
lawyer and client, and also as setting
aside a divorce, after the plaintiff in the
action has remarked. The parties to the
case are all from Kansas City, Mo.
v here Clinton G. Nickells, the plaintiff
in the original action, lived with his wife
and two children. There is another
N in the case, also, formerly Maude
Graham, who was married to the plaintiff
Immediately after the divor, Q which has
just been set aside, was granted. EARLY
in 1894, the plaintiff, having come from
Kansas City to Wahpeton in this state,
served upon the defendant and appellant
in the case, notice of an action for
divorce. Through a Wahpeton attorney,
the defendant made answer, denying the
statements of the plaintiff, and alleging,
instead, grievous wrongs upon the par
of the plaintiff. The attorney, however,
claiming that he had not been paid his
fees, withdrew his answer when the case
came up for trial, thus leaving the de-
PENDANT in apparent default, and on the
same day, an order was entered, grant
ing the divorce, as prayed for. n
Upon receiving notice of the fact that
the divorce had been granted, the de-
PENDANT at once made application,
through Ball & Watson of Fargo, to have
the case %re-opened, and to be allowed to
com in and make answer. She said her
attorney had acted in bad faith, that she
had had no intimation that he was to
withdraw from the case, and that his
action in Withdrawing the answer with
OUT her knowledge was a gross injustice
to her. After several arguments and
motions, the application to come in and
make answer vas denied, and from this
order, the defendants appealed to the
supreme court.
The case was argued before the eu-
preme court, at the May term here. The
record in the case is quite long, and was
gone into in detail, Attorneys Ball &
Watson and I. J. Ringolfsky for the de-
PENDANT and appellant, and w. E. Purcell
and McCumber & Bogart for the plaintiff
and respondent. The decision which
was handed down today, is by Wallin,
Z. j., and a %concurring opinion has also
been written by Justice Corliss. The
syllabus of the case is as follows:
When an attorney, after appearing for
the defendant in an action, and serving an
answer to the complaint therein, with
draws such answer, and appearance as an
act done in avowed hostility to his client,
and as an act OF retaliation against his
client for alleged non-payment of his fees,
Held that such withdrawal was an act
done in bad faith, and hence was beyond
the scope of the authority of the attorney
at law.
Where the ground and reason for such
withdrawal is reduced to writing, and such
bad faith and hostile purpose is apparent
upon the face of the writing, and such
writing is presented to the trial court and
filed in the action before a default is de-
clared therein, and where, upon such at
tempted withdrawal of the answer the
court declared the defendant to bel in de-
for answer. and allowed Judgment to
be entered against the defendant as in a
default case: Held, that such Judgment is
illegal III its inception and should be set
matter of strict legal right and not as a
matter of favor.
Held, further, that this rule applies to
actions for divorce as we'll as to other
actions.
In concluding the opinion the court
expresses itself, in the matter of the
plaintiffs subsequent marriage to Maude
Graham. the other in the case.
After stating that judgments in divorce
cases are open to attack in the same
manner as other judgments, the court
says: 1.-THE rule commends itself as a
wise and conservative civil regulation
tending to restrain divorced parties from
entering into a new matrimonial alliance
with too much precipitation, and al a
time when tie decree which severed a
former marital connection is still legally
open to assault and reversal in the courts
of the state where the Judgment is
entered"
Winters Appointed.
The state board OF university and
school lands met this afternoon to ap-
point a state land commissioner. All
five members OF the board were present.