The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1912-05-06

plaintiff appeals.
Modified on condition and affirmed.
Opinion by Goss, j.; Spaulding, c..
J., concuring specially.
Purcell & Divet, and p. l.. Keat-
ing, Of Wahpeton, n. D., attorneys Tor
plaintiff and respondent.
Ashley Coffman Of st. Paul, Mimi,
counsel for plaintiff,
Curtis & Curtis, and Rourke &
Kvello, of Lisbon, n. D.. attorneys
for defendant and respondent.
Flynn & Traynor, of Devils Lake,
N. D., and c. F. Clark, Of Cedar
Rapids. Ia, attorneys for Intervenor
e. r. Moore.
John Rfebold, plaintiff and appellant,
VS.. w. J. Hartzcll, defendant and re-
spondent.
A judgment entered by default in
plaintiffs favor in 1906, but void for
want Of jurisdiction, was three years
latter on motion vacated after service
Of moving papers on the attorney who
subscribed the original summons and
complaint and thereafter brought on
for trial, other attorneys appearing a.
the request Of such former attorney of
record, but without employment by
plaintiff who had no knowledge of any
proceedings taken after entry Of the
void judgment presumed by him to be
valid. Plaintiff was a nonresident.
Without notice to him, after a pur-
ported trial on the merits In 1909, of
which he was ignorant, judgment was
rendered in defendants favor, quiet
ing title against plaintiff. All attor-
neys under the Gil cumstances shown
in the record acted In good faith. The
former attorney of record was inca
pacitated by sickness from attending
personally to the matter, employing
other attorneys so to do who were
ignorant of plaintiffs whereabouts;
plaintiffs attorney having di. pend
ing the litigation. Promptly upon no
tice Of the rendition Of the second
judgment PLAINTIFF applied for it's va
cation with leave to proceed to trial
on the merits, and upon denial there
of appeals. Held:
1. That the judgment first entered
was void for want Of jurisdiction of the
defendant.
2. That under section 1884 the ac-
ton vas in law deemed discontinued
after sixty days had elapsed from the
filing of the affidavit for publication
without personal service of the sum-
mons on the first publication thereof
having been made.
3. Conceding without deciding that
the authority by employment of the
attorney to institute the action was
sufficient from which his authority
would be presumed to continue, and
as such assuming that he remained an
attorney of record authorized under
section 1887 to accept service of the
application served upon him in 1909
to vacate said judgment, and conced-
ing the application Of that statute to
this case deemed discontinued long
prior thereto under section 1884, never
theless said attorney Of record would
have no authority to employ other at
torneys to act for him in his behalf,
as was lone in representing the plain
tiff on the trial oS said action; and
consequently the appearances made by
them, are void and not binding under
this record upon plaintiff. The ap-
plication is therefore to be treated as
n to vacate a judgment rendered by
| default.
4. The record ~conclusively estab-
fishes want of knowledge in the plain
tiff of any proceedings had after the
entry Of he void judgment until after
notice Of entry of the voidable judg-
ment from which plaintiff applies to
be relieved.
5. Soon after the entry in 1906 of
the void judgment plaintiff paid said
attorney Of record in full for fees and
costs, diseharging him and terminal
ing his employment. This destroys
any contrary presumption of the con-
tinuance of such employment Of the
attorney of record and relieves plain
tiff from the later unauthorized acts
Of said attorney of record being in
law imputed to plaintiff.
6. The second judgment while ap-
parently regular as rendered after no.
tice Of trial servsd on the attorney OF
record and counsel appef ing, on proof
Of want Of authority in them to rep.
resent plaintiff, and his want Of knowl.
edge thereof, is the absence Of AM
ratification of their acts and under
plaintiffs reputation thereof, is void.
able and should on plaintiffs applica.
ton seasonably made be vacated.
z. Under the showing made on THU
application plaintiff being withou'
fault before or since the entry of saiC
judgment against him, he should
under section 1884, be relieved from
said judgment and be permitted {
trial on the merits.
(Syllabus by tie court)
From an order denying application
to vacate a judgment taken agains
p~laintiff in the district court of Dicke,
county, Allen, J., plaintiff appeals.
Reversed and remanded for trial.
Opinion by Goss, j.
e. e. Cassels of Glendale, and Car
mady & Perkins of HilIsboro, N. ID
attorneys for appellant on this appeal
Rourke & Kvel!o of Lisbon, and Chas
E. Wolfe Of Wahpeton, N. D., attor
neys for respondent.
Samuel BurcelI, plaintiff and re
spondent, VS.. A. Goldstein, defendan
and appellant, and The National Unto
Fire Insurance Co, ct al, garnishee
and appellants.
/. A claim for exemption in
n a# aE--