the plaintiff the sum of $21,022, and that, premises; that she then employed said Andefendant pay to the attorneys for plaintiff, drews, who, together with James A. Beha, as attorneys' fees, court costs, and expens- became her regular counsel up to the cones, the further sum of $3,650, the said sums clusion of the trial, while Leslie C. Hardy to be plaintiff's full share of the community represented her as her local attorney. The property. The custody of the minor chil- court found as facts that Hardy relied wholdren was awarded to plaintiff, the decree ly upon the representations and instructions providing that the defendant should pay for made and given to him by plaintiff's New their board and clothing and education dur- York attorneys, and that he followed such ing their minority. This decree was entered instructions, believing that in so doing he on the 6th day of January, 1920. On Janu- was following the instructions of plaintiff; ary 16, 1920, the defendant paid to Leslie that, owing to plaintiff's inability to speak C. Hardy, as attorney for plaintiff, the full English intelligently, he was unable to consum of $24,672, taking his receipt therefor. verse with her; that his entire conduct was Of this amount, $21,022, Mr. Hardy deposit- clearly ethical in every way, and that as ed to the plaintiff's credit in the First Na- local attorney he performed fully all duties tional Bank of Nogales. incumbent upon him as officer of the court and one of the attorneys for plaintiff. The court's findings also exempt defendant's attorney of any unprofessional or unethical practices or conduct. On February 25, 1920, the plaintiff, having theretofore discharged the attorneys who had represented her up to and during the trial, filed by and through new attorneys a paper in the following words: "Comes now Dora Katz Leeker, and moves the court to relieve her from the judgment, order, and decree of divorce rendered against her in the above-entitled action on the 6th day of January, 1920, and to set aside and vacate said judgment, order and decree, and to reopen the said action, and to permit plaintiff to amend her pleadings in said action so as to present the real merits of said cause, and to have a trial thereon. This motion is based upon the affidavits of plaintiff herein and Henry Leeker, which affidavits are hereto attached, marked Exhibits A and B, and made a part hereof." The affidavits charged fraud, trickery, and deceit upon the part of plaintiff's attorneys. A hearing was had on this motion April 20, 1920, upon affidavits and oral testimony. Thereafter, on July 15, 1920, the court granted the motion and ordered the judgment rendered on January 6, 1920, to be vacated and set aside. This decision of the court was rendered in his chambers at Tombstone, and transmitted to the plaintiff's and defendant's counsel through the mail, as provided by paragraph 346 of the Civil Code. Plaintiff's attorneys received this notice through the post office on July 16, and on July 17 the plaintiff drew her check on the First National Bank of Nogales for $21,000 which was paid. Thereafter, on September 8, under the order of the court, she redeposited $17,450 of said money to the order of the clerk of the court, leaving with the plaintiff $3,500 as temporary alimony allowed her between April 1, 1919, and October 1, 1920. On the motion to vacate the judgment of January 6, 1920, the court made findings of fact. Before stating the substance of such findings it should be known that plaintiff, while sojourning in the city of New York, first became acquainted with the defendant's infidelity, and consulted, while a subtenant of his, James D. Andrews, an attorney of that city, as to what she should do in the With reference to the New York attorneys, Andrews and Beha, the findings are in effect that they tricked and deceived the plaintiff in this, that, notwithstanding she had instructed them that in no event should the marriage relation be dissolved or a divorce granted, they proceeded to Nogales and instituted a suit for divorce; that their employment was to secure a property settlement for the pliantiff from the defendant, and to secure her half of the community property, and, if possible, a separation or a separate maintenance from the defendant; that after bringing said suit her said attorney Andrews proceeded to draw up a property settlement contract contemplating the payment of part of the community property to plaintiff and payment of large attorneys' fees to her New York attorneys; that said contract for the division of property was so worded that the defendant could reasonably contend that no money need be paid the plaintiff or to her attorneys as attorneys' fees unless an absolute decree of divorce was entered; that such was thereafter the contention of defendant and his attorneys, and that plaintiff's attorneys, therefore, had a 'strong financial inter est in failing to obey plaintiff's instructions, and in desiring the dissolution of the marriage between the parties; that said New York attorneys dismissed the plaintiff's complaint charging the defendant with adultery, and failed and refused to amend their pleadings so as to make the same an issue, and thereby took the question of defendant's infidelity away from the court, so that no evidence thereof could be offered or taken, and placed themselves in a position where they could only introduce evidence to refute whatever charges were made by the defendant instead of being able to affirmatively show the failure of defendant to observe his marriage vows. The court further found that, owing to plaintiff's inability to speak the English language properly, and the hysterical condition (202 P.) in which she was, and also owing to her | 140; Chenoweth v. Prewett, 17 Ariz. 400, 153 mental frame of mind, she was unable to Pac. 420. fully advise the court of what was transpiring, and of the failure of her counsel to present her side of the case to the court; that the plaintiff requested the said Beha to urge upon the court matters in her defense and in general to take a more active part in the trial; that this communication, as all others made to the said Beha, was made in German or broken English, and was not intelligible to the court. Beha represented to the court that the remarks of the plaintiff were solely urging him to put in evidence the conduct of the defendant with Sarah Goldner; that Beha advised the court he did not wish to amend his pleadings as to permit such evidence to be introduced. The court in passing upon the motion stated as conclusions of law: [2] The motion was filed on the fiftieth day after the judgment was rendered, and within the time fixed in paragraph 600, Civil Code. But it was not passed upon by the court until some days after the expiration of 6 months from the rendition of the judgment. Granting that the causes set forth in motion to vacate, and found by the court to exist, constitute "good cause shown" it is insisted by appellant that the court, at the time the order was made setting aside and vacating the judgment, had lost jurisdiction to act, and that the order was therefore void. It is the contention that, not only should the motion to vacate the judgment under paragraph 600 be made within 6 months after the making or entry of judgment, but the order sustaining such motion should be made "If the findings made by the court are true, the meaning and sense of the statute, and within the 6 months. This, it is claimed, is plaintiff, who desired separate maintenance, but who strenuously opposed at all times a di- appellant, to sustain such a contention, cites vorce, through the fault of her New York at- the following cases: Sargent v. Kindred, 5 torneys, and through their deliberate fraud N. D. 472, 67 N. W. 826; Nicklin v. Robertupon her, and on the court, had judgment son, 28 Or. 278, 42 Pac. 993, 52 Am. St. Rep. against her when she had a defense which, if 795; McKnight v. Livingston, 46 Wis. 356, 1 proved, would have prevented the divorce. N. W. 14; Granse v. Frings, 46 Minn. 352, Furthermore, in view of the findings, plaintiff 49 N. W. 60. These cases certainly support was in no wise at fault considering her lack of that view. knowledge of the English language, but did her best at all times to prevent said divorce and to cause her said defense to be presented to the court." Frank J. Barry, of Nogales, for appellant. Duffy & Purdum and Duane Bird, all of Nogales, for appellee. ROSS, C. J. (after stating the facts as above). The appellant, who was the defendant below, appeals from the order granting a motion to vacate and set aside the judgment and the court's refusal to vacate the order setting aside the judgment. The appellant makes 20 assignments of error, covering 4 or 5 propositions. He first contends that the motion to vacate the judgment, not having been filed within 10 days after the rendition thereof, came too late, and that the court had no power to grant the motion under the provisions of the statute regulating motions for new trial. The language employed in paragraph 600 has reference to the time within which the court may modify or vacate the judgment, and not to the time its jurisdiction is invoked to do so. It says: "The court may [at] any time within six months after the making or entry of any judgment * * • for good cause shown, modify or set aside its judgments. The preceding paragraph, 599, authorizes the court to extend or enlarge the time within which certain things may be done but provides that in no event shall the time in which to take or perfect an appeal in a civil action be extended. The two paragraphs, 599 and 600, make up chapter 20, tit. 6, to the Civil Code. They are quite as intimately related to each other as if they were but one paragraph or section. Indeed they were taken from section 7786, General Statutes of Minnesota 1913, with but slight changes. [1] A party against whom judgment has been rendered must pursue one of the modes If the court may hold a motion to modify provided by statute, if he feels himself ag- or vacate a judgment for more than 6 months grieved, to have it modified, vacated, or set before passing upon the same, he may do aside, and he must do so within the time, what paragraph 599 expressly, and what parand in the manner, stipulated in the law.agraph 600 impliedly, forbids. If a party disThe motion in this case cannot perform the satisfied with a judgment against him, by filfunctions or confer the rights of a motioning a motion to have the same vacated, may for new trial, as it was not filed within 10 days after the rendition of judgment. Paragraph 590, Civil Code; Allan v. Allan, 21 Ariz. 70, 185 Pac. 539; Red Rover Copper Co. v. Hillis, 21 Ariz. 87, 185 Pac. 641; Peer v. O'Brien, 21 Ariz. 106, 185 Pac. 644; Daggs v. Howard Sheep Co., 16 Ariz. 283, 145 Pac. confer jurisdiction upon the court to pass upon the same one day after the 6 months has expired, the jurisdiction would exist 12 months thereafter, and thus the aggrieved party could suspend the finality of the judgment indefinitely, and long beyond the period allowed by the statute in which to perfect an appeal from a judgment. In Gallagher v. Irish-American Bank, 79 Minn. 226, 81 N. W. 1057, the court had before it the same question we have here, and it was there held that the court lost jurisdiction to pass upon the motion after the time for appeal had expired. It was there said: "We cannot believe that it was intended by the Legislature, in the amendment referred to [par. 1786], to leave open until the limitation upon the judgment itself had run the means of reversing or setting it aside, or effectually to destroy the effect of the provision of law which limits the time within which appeals from judgments may be taken; for where a judgment that has settled questions of the highest importance could not, by reason of the limitation upon the time for appeal, be reviewed, if such a rule obtained, it could easily, upon a motion supported upon ex parte affidavits, be modified or set aside. The effect of such a ruling would be practically to nullify or repeal the statutory limitation of time for taking appeals from judgments, and as a precedent result in such confusion in practice, and work such havoc to vested rights accruing under the highest judicial sanction known to the law, that we cannot approve of so obviously unjust and illogical a conclusion; and we hold that, when the effort to modify or amend the judgment in this case was made, the time to appeal having expired, it was too late to grant the relief sought." We conclude that the legislative intent was that the motion to modify or vacate a judgment under paragraph 600, supra, must not only be made within the 6 months, but that the court's jurisdiction to pass upon the same is limited to that time. [3] It is next contended by the appellant that, since the appellee has no standing as the movant for a new trial under paragraph 584, Civil Code, nor as the movant to vacate the judgment under paragraph 600, the only statutory remedies available to an aggrieved party, her motion to vacate should have been denied. The appellee's answer to this contention is that every court of record has the inherent common-law power to vacate and set aside judgments obtained through fraud, and that this rule applies to judgments obtained in divorce as well as other cases. We think it well settled, as a general proposition, that fraud vitiates everything that it comes in contact with, and that an innocent party who has suffered thereby may, by acting promptly in accordance with the forms of the law, and before any rights of third persons are involved, ordinarily se cure relief therefrom. In this case it cannot be said that the appellee was guilty of any laches. She filed her motion to vacate and set aside the judgment 50 days after the same was rendered, and long before the expiration of the 6 months allowed her in which to show good cause for its vacation. 1 Black on Judgments (2d Ed.) § 321, says: "The power to set aside judgments for fraud or collusion, though expressly granted by statute in many of the states, is not dependent upon legislative recognition. It is a commonand may be exercised after the expiration of law power, inherent in all courts of record, the term in which the judgment was rendered on the application of the party injured." 99. The last author says: See Freeman on Judgments (4th Ed.) § "Even in the case of decrees of divorce they have been vacated on motion for fraud, nor have the courts hesitated to do so even after marriages have been contracted in reliance upon the fraudulent decree, and one of the parties was innocent of all complicity in or knowledge of the fraud." See 1 Black on Judgments, § 320. [4, 5] This statement of the law, we think, is generally recognized to be correct. We find it repeatedly announced in the text-books and in the cases. We think it is a salutary rule, both for the protection of the court and litigants. The difficulty is in its application. Most of the cases in which judgments have been vacated for fraud, our investigation discloses, are cases in which the prevailing party has been guilty of the fraud. The appellant cites us to a great number of cases of that character in his brief, and he insists that the rule of the law is that, if the prevailing party has been honest and fair in the litigation, the judgment should never be Vacated, even though the court may have been imposed upon or the opposite party tricked or defrauded. This proposition is not put up to us in these words, but that is its effect. The rule contended for by the appellant is doubtless the one that has generally been announced, but like all other rules it has its exceptions. It is said: "If an attorney corruptly sells out his client's interests to the other side a judgment thus obtained may be set aside on the charge of on Judgments: fraud." Section 344, Black United States v. Throckmorton, 98 U. S. 61. 25 L. Ed. 93. Haverty v. Haverty, 35 Kan. 438, 11 Pac. 364, is very similar to the instant case. The attorney for the defendant acquiesced in the judgment for the plaintiff on condition that plaintiff pay into the court alimony in the sum of $100. It appeared that the defendant was not present at the trial, although he had been notified of the setting of the case. He had furnished his attorney no list of witnesses. When the case was called the attorney was not prepared to defend it. He did not cross-examine the plaintiff's witnesses. He stated that he applied the $100 in the payment of a note he had signed with the defendant as surety and a livery bill owed by defendant and the balance on his fee. The court said, after discussing the duty of an attorney to his client, and after' reviewing the evidence: (202 P.) "Considering the evidence of this attorney, not feel, would justify us in substituting our his failure to cross-examine the witnesses, the judgment for that of the person the law judgment rendered, we cannot say that such has designated to try and determine the attorney acted in good faith towards his client. | facts. After his arrangement with Col. Burris [plaintiff's attorney] it was his interest that Mrs. Haverty should obtain her divorce. Thereby he realized $100. That interest was such, we think, as betrayed his judgment and endangered his fidelity. He certainly acted under a clear misapprehension of his professional duty. To such conduct we cannot give the sanction of this court. The practice of attorneys would be very impure, and possibly fraudulent, if we permitted things of this sort to be done. Upon the evidence produced, the judgment of the trial court should have been for the annulment of the decree of divorce." See, also Graham v. Graham, 54 Wash. 70, 102 Pac. 891, L. R. A. 1917B, 405, 18 Ann. Cas. 999. If it be true that the property settlement agreed upon before the case came on for trial contemplated the payment of large attorneys' fees to plaintiff's New York attorneys, contingent upon defendant's securing a divorce, it would seem that such attorney's had a strong financial interest" in failing to obey plaintiff's instructions to fight divorce, and in desiring the dissolution of the marriage contract. Such interest would certainly betray their judgment and endanger their fidelity. "An attorney owes to his client not only all the industry and application of which he is capable, but also, unshaken fidelity. He must be loyal in act and spirit to his client's interests. His loyalty should be unquestioned, above suspicion, and beyond reproach," says Mr. Chief Justice Horton in the Haverty Case. If an attorney's fee is contingent upon the success of the adversary of his client, either in amount or time of payment, he is certainly not in a postition to make the earnest, sincere fight for his client that the law and his duty require of him. Unfaithfulness of an attorney to his client in withdrawing from the case, or in pretending to defend his rights when in fact he so handles the case as to purposely lose it, has afforded grounds to set aside the judgment in the following cases: Nichells v. Nichells, 5 N. D. 125, 64 N. W. 73, 33 L. R. A. 515, 57 Am. St. Rep. 540; Pac. R. R. Co. v. Mo. Pac Ry. Co., 111 U. S. 505, reading 520, 4 Sup. Ct. 583, 28 L. Ed. 498. [7] It is also said that, inasmuch as the appellee accepted some of the benefits of the judgment before it was set aside, she should be estopped to deny its validity. This is the Here the invocation of the general rule. property involved, however, is community property. It belongs as much to one spouse as it does to the other. The law places it in the control of the husband during coverture, and constitutes him the medium through which the other spouse and the children are to receive their support and maintenance. It seems that, whatever the appellee has received by virtue of the judgment, she would have been entitled to as one of the partners in the community, except perhaps the matter of attorneys' fees. Whatever has been consumed in carrying on this unfortunate litigation out of the community property for the appellee doubtless is offset by the expenditures in that behalf by the appellant. The order of the court vacating and setting aside its judgment and directing a new trial is affirmed. (23 Ariz. 184) TOWN OF FLAGSTAFF et al. v. GOMEZ. (No. 1858.) (Supreme Court of Arizona. Dec. 10, 1921.) 1. Appeal and error 395-Filing of bond jurisdictional where appellant is required by law to furnish bond. Under Civ. Code 1913, pars. 1234, 1236, 1237, an appeal is not perfected and the jurisdiction of the appellate court does not attach until notice has been given and a bond has been filed within the proper time in those cases where the appellant is required by law to furnish a bond, and the giving of the notice without the filing of a bond confers on the court merely the jurisdiction to dismiss the appeal. 2. Appeal and error 377-That sufficient appeal bond is given by one defendant does not confer jurisdiction on appellate court to review judgment against codefendants who have not given required bond. That one defendant appealing from the judgment for plaintiff against all the defend- [6] It is next objected that the evidence submitted on the motion to vacate does not support the findings of the court. In this case we feel like following the rule that we have usually adopted. The lower court had every advantage of personal contact and observation of all the parties and was certainly in a better position to determine what the facts showed than we are. That we, A city authorized by its charter to sue and from a reading of the cold record, might be sued has implied authority to execute an aphave come to a different conclusion, we do peal bond. 1039-Express power to sue and be sued implied authority to execute appeal bonds. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. Municipal corporations 816(2) Con- 9. Negligence ~56(1)—“Proximate cause" deplaint held to charge sewer contractors with fined. duty toward child who fell in unguarded excavation in widely used street. Complaint alleging that sewer contractors, while constructing sewer under contract with city, negligently left manhole six feet deep open and wholly unprotected for a period of more than 30 days, though situated in a street constantly used by the public, that the manhole became filled with water from heavy rains, and that, while the "excavation was open, exposed, and without any protection and full of water," plaintiff's 15 months old daughter "fell * * and was immediately drowned in 5. Municipal corporations 809(2)-Sewer Sewer contractors, having made excavation in widely used street, were required to protect the public from the danger thereof by warning the people using the street of the presence of the excavation or by covering the opening so as to prevent persons from falling in. 6. Municipal corporations 809 (2)-City's obligation to protect excavations in streets did not relieve sewer contractors from guarding excavation. The fact that the city was required to protect excavations in its streets did not relieve sewer contractors required by their contract to perform the work in a reasonably safe manner of the duty of protecting excavation in constantly used street to prevent people from falling therein. 7. Municipal corporations A "proximate cause" is a cause without which the accident would not have happened. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Proximate Cause.] 10. Negligence 95(1, 3)-Parents' negligence imputable to child. Negligence of parents will not be imputed to a child to defeat an action for the benefit of the child nor when in behalf of its estate where there are beneficiaries other than the parents, but will be so imputed where the parents are the beneficiaries, though the action is nominally for the benefit of the estate of the deceased child. II. Death 24—Negligence of parents defense to action for child's death. In action by a father for death of child, the negligence of the parents was a good defense where parents were the sole heirs of the child under Civ. Code 1913, par. 1091. 12. Pleading 236(2)-Refusal to permit amendment of answer before commencement of trial error. Under Civ. Code 1913, par. 422, refusal to permit defendants to amend answer so as to plead a good defense before commencement of the trial held error, since court's discretion to allow or refuse the filing of an amended pleading can only be exercised after the trial has begun. Appeal from Superior Court, Coconino County; J. E. Jones, Judge. Action by Victor Gomez against the Town of Flagstaff, a municipal corporation, McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, and Neal McLean and William D. Walsh as indi816(2)—Allega-viduals. Judgment for plaintiff, and the Town of Flagstaff and McLean & Walsh and Neal McLean and William D. Walsh as individuals separately appeal. Appeal of the Town of Flagstaff dismissed, and judgment against other defendants reversed, and cause remanded. tion that child "fell" in excavation held to show negligence in leaving excavation unguarded proximate cause of child's death. Allegation that child "fell" in excavation left unguarded by sewer contractors held sufficient to show that the contractors' negligence in leaving excavation unguarded was the proximate cause of the child's death. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Fall.] 8. Municipal corporations 821 (19)-Whether failure to guard manhole was proximate cause of child's death held for jury. In action for death of 15 months old child in manhole left unguarded by defendant sewer contractors, evidence that the manhole was left unguarded, and that the child was seen near the manhole alone almost immediately before it was discovered in manhole, with nothing to suggest that a passing vehicle might have knocked it accidentally into the manhole or that some other child might have pushed it in while playing, held sufficient for submission to jury of whether the contractors' failure to protect the opening was the proximate cause of the child's death. Francis D. Crable, of Flagstaff, for appellant town of Flagstaff. Richard E. Sloan, C. R. Holton, and Greig Scott, all of Phoenix, and Ford & Bodkin, of Los Angeles, Cal., for appellants McLean & Walsh, a partnership, and McLean and Walsh, as individuals. Townsend, Stockton & Drake, of Phoenix, for appellee. MCALISTER, J. Victor Gomez brought this action as the father of Victoria Gomes, his 15 months old child, against the town of Flagstaff, a municipal corporation, McLean & Walsh, a partnership composed of Neal McLean and William D. Walsh, and Neal McLean and William D. Walsh as individu For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |