Frank v. Union Trust Co. , 239 Mich. 646 ( 1927 )

I am not in accord with the conclusion reached by Mr. Justice McDONALD. It exemplifies in a marked degree that "Hard cases make bad law." The motion for special leave to appeal was based upon the petition of the defendant, verified by its assistant trust officer, in which it was stated:

"That it is prepared and has been prepared at all times to pay the proper amount due upon said contract according to its terms, that it relied upon its said attorneys to take proper steps to appeal to the circuit court for the county of Wayne from any judgment which might be entered in said proceeding,"

and further —

"That as appears from the affidavits of Frank W. Atkinson and Edward A. Fleming, hereto attached, your petitioner has at all times relied upon its said attorneys to properly protect the interests of said estate in said property and has instructed them to take an appeal if necessary to protect the interests of said estate from any judgment which might be rendered, and that your petitioner has been without fault in its failure to appeal within the statutory time and that its failure to take such appeal has been on account of circumstances beyond its control and that the interests of justice require that it be now allowed to take a special appeal to the circuit court for the county of Wayne."

From the above it clearly appears that the defendant did not instruct its attorneys to take an appeal; that it relied upon them to protect the interests of the estate and "instructed them to take an appeal if necessary" to do so. Whether the defendant should pay the amount found to be due or appeal from the finding was a question it did not determine. It left decision to its attorneys.

Both attorneys made affidavits similar in form. I quote therefrom:

"That he was duly instructed by the said Union Trust Company to appear upon the hearing of all proceedings in connection with said property and to take an appeal to the circuit court for the county of Wayne from any judgment which might be entered in said proceedings necessary to protect the interests of said estate in said property, and that the said administrator relied upon this deponent * * * to properly protect the interests of said estate in said property."

It was further stated therein that the failure to take an appeal within the time provided therefor —

"was not due to any neglect on the part of said administrator, but was caused by circumstances wholly without the control of said administrator and by reason of the fact" that the attorneys "did not take proper steps within the time allowed by the statute to take said appeal."

There is no allegation in any of the affidavits that the judgment sought to be appealed from is not a righteous one. No reason is assigned for the non-action on the part of the attorneys. It is not stated that they had decided to take an appeal within the time limited therefor and neglected to do so. It may fairly be inferred that the thought of appeal first entered their minds after the time had elapsed within which payment of the amount found to be due might have been made.

A party having litigation pending in a court may attend to it personally or employ an attorney to do so. The latter course is usually the much wiser one to pursue. An attorney, if employed, must follow the instructions of his client. The plaintiff in an action in which the defendant is represented by an attorney has rights which the court is bound to respect. He is entitled to have the proceedings therein conducted in the manner provided by the statute. The judgment in the commissioner's court had been regularly entered after a trial in which defendant was represented by attorneys. When the time for compliance with the provision therein for payment had elapsed, the plaintiff had the right to assume that the defendant had abandoned all intention to preserve any rights to which it was entitled under the contract. While the attorneys for the plaintiff were chargeable with notice of the provision of the law under which a delayed appeal might be allowed, if they knew that the attorneys for the defendant therein were in the city and in good health, and that the trust company was still doing business, they need have had no expectation that an application therefor would be made.

Were this a proceeding in equity, I might well be content with the conclusion reached. But we are here asked to place a construction upon the language of a statute. To hold that under the showing made in the petition and affidavits this defendant was prevented from taking an appeal "by circumstances not under his control" is, in my opinion, equivalent to saying that the statute does not mean what it says. If so interpreted, any person seeking an appeal under it may simply say, "I left it to my attorney to decide and he neglected to take an appeal." And the attorney may well say, "I need give it no attention. The court will grant a delayed appeal as my client is not chargeable with my neglect."

Our holding in Denver, etc., R. Co. v. Wayne Circuit Judge,227 Mich. 589, is, I think, squarely decisive of the question before us. The negligence of an attorney was not involved inKowalsky v. Wayne Circuit Judge, 221 Mich. 457. In Capwell v.Baxter, 58 Mich. 571, the appeal was allowed for the reason that "the attorneys were honestly mistaken as to the date of the adjournment."

Beale v. Swasey, 106 Me. 35 (75 A. 134, 20 Ann. Cas. 396), is instructive. A statute authorized the supreme judicial court upon a bill in equity to permit a claim against an estate to be presented when the time limited therefor had elapsed, if the creditor was not chargeable with "culpable neglect" for the delay. The court said:

"The allegations of this bill, respecting the delay to bring suit, considered in the most favorable light for the plaintiff, are in substance, that she placed her claim with an attorney in good standing with express instructions to enforce it against the estate, that she was assured by him it was being properly attended to, and that she relied upon him and believed his assurances, and supposed her claim was in suit within the time limited, 'but in some way to the plaintiff unknown or by some oversight or inadvertence or negligence on the part of the attorney' no action on her claim was seasonably begun, although, as she afterward learned, the executrix had declined and refused to pay the claim.

"We think these allegations are not sufficient to relieve the plaintiff of the charge of 'culpable neglect' within the meaning of that phrase as used in the statute. An attorney, within the scope of his authority, represents his client. His acts of omission as well as commission are to be regarded as the acts of the party he represents. The neglect of the attorney is equivalent to the neglect of the party himself.Kean v. Strausberger, 71 Ill. 413, a case very much in point with the case at bar. See, also, cases collected in note on page 36, Vol. 31, L.R.A. To entitle the plaintiff to the relief provided for by this statute, it is not enough for her to allege and show that she entrusted the enforcement of her claim to an attorney in good standing upon whom she relied, and that he did not prosecute it as directed by her, for his neglect to act in the premises must be considered as her neglect. If his neglect is culpable, then she must be chargeable with culpable neglect, at least, in the absence of any special circumstances making it equitable for her to be relieved therefrom. But no such special circumstances appear in this case. There is no allegation as to how it happened that the attorney did not seasonably bring suit on the plaintiff's claim. On the other hand she alleges that she does not know why it was not done, suggesting however that it was 'oversight or inadvertence or negligence on the part of the attorney.' "

In Clark v. Stevens, 55 Iowa, 361 (7 N.W. 591), the court had occasion to construe a statute reading as follows:

"If after the commencement of an action the plaintiff fail therein for any cause except negligence in its prosecution, and a new suit be brought within six months thereafter, the second suit shall, for the purposes herein contemplated, be deemed a continuation of the first."

The court said:

"The allegations of the petition clearly show that the first petition was not filed in time, on account of the inadvertence and forgetfulness of the attorneys. This is nothing less than negligence. Surely it cannot be claimed that negligence to prosecute a suit will be excused upon the ground that the attorney charged therewith 'inadvertently mislaid papers,' and thus failed to do what the law requires shall be done. We do not understand that an intention to fail in the discharge of duty is an ingredient of negligence. A failure through inattention, inadvertency or forgetfulness, is always regarded as negligence, and through a fault of this character the action was discontinued. The petition does not show that the first petition was not filed on account of accident or mistake. It is a pure case of forgetfulness and 'inadvertency.' "

In my opinion the order granting a delayed appeal should be vacated and set aside, with costs to appellants.

BIRD, STEERE, and CLARK, JJ., concurred with SHARPE, C.J.