Summary
In Raible v. Raydel, supra, the Supreme Court held that the trial court may dismiss an action, pursuant to subdivision 5, Section 11586, General Code (now subdivision E, Section 2323.05, Revised Code), where plaintiff in an action is subpoenaed into court and fails to appear.
Summary of this case from Gray v. GrayOpinion
No. 33603
Decided June 16, 1954.
Dismissal without prejudice — Section 11586, General Code — Plaintiff subpoenaed in hearing on defendant's motion — Failure to appear — Disobedience of order concerning proceedings in the action.
Where the plaintiff in an action is subpoenaed into court, in connection with the hearing of a motion filed by an affected defendant and involving a complication precipitated by the allegations of the petition and the relief sought therein, and fails to appear, the court may properly and effectively make an order, communicated to plaintiff's attorney of record, that unless plaintiff appears at a specified later time on the further hearing of the motion, his action will be dismissed; and, in the event plaintiff does not appear in response to the order communicated to his attorney, the court may dismiss the action under subdivision 5, Section 11586, General Code (subdivision E, Section 2323.05, Revised Code), providing that an action may be dismissed by the court for disobedience by the plaintiff of an order concerning proceedings in the action.
APPEAL from the Court of Appeals for Cuyahoga county.
An action was instituted in the Court of Common Pleas of Cuyahoga County by C. Greif Raible against Alice E. Raydel and others, having for its principal purpose the setting aside and nullifying of a certain settlement agreement entered into between the named persons on June 29, 1948, following Raible's plea of "guilty" to a bastardy complaint filed against him by Raydel in the court of a justice of the peace. Hereinafter C. Greif Raible will be referred to as "Raible" and Alice E. Raydel as "Raydel."
The amended petition herein recites that such agreement was made to provide for the support of a male child born to Raydel out of wedlock on July 18, 1947, until he reached the age of 18.
By the terms of the agreement, Raible, after a lump sum payment of $6,000 to Raydel, further bound himself to pay the sum of $500 per month. To secure such payments, Raible, as authorized by the agreement, purchased two annuity contracts from two life insurance companies. These contracts were assigned to the Central National Bank of Cleveland as trustee, under a trust agreement whereby a $500 monthly payment was to be made to Raydel by the trustee out of the moneys it received from the insurance companies.
The amended petition which seeks a nullification of the agreement of June 29, 1948, is lengthy and contains eight causes of action. It charges among other things that such agreement was procured by fraud, deceit, duress and misrepresentation practiced on Raible by Raydel and others.
In response to the amended petition and by reason of the averments embodied therein, including a prayer for a restraining order against it, the Central National Bank, as trustee, filed a written motion in the cause for an interlocutory order setting forth the court's directions as to the disposition the trustee should make of the funds coming into its hands from the two insurance companies.
After the overruling of a motion to strike the trustee's application for an interlocutory order from the files, such application was heard. Shortly afterward a further hearing took place, prior to which time subpoenae duces tecum were issued at the instance of certain of the defendants in the action and, according to the returns thereon, were personally served on Raible to secure his attendance and testimony at the hearing. Raible filed a motion to quash the service of such subpoenas which motion was not decided and he did not appear at the hearing. However, he was represented by counsel.
At such later hearing, the trial judge stated that he desired the presence of Raible for questioning in regard to the claims of fraud, misrepresentation and so forth, made in the amended petition, to assist the court in ruling on the trustee's application for an interlocutory order. The court then orally ordered in the presence of Raible's attorney that Raible be present at a hearing scheduled for July 8, 1952, and announced that, in the event of his failure to appear, his action would be dismissed.
From such order an appeal was taken to the Court of Appeals where the same was dismissed on the ground that there was no final appealable order before the court. A motion to certify the record was overruled by this court.
Thereafter, Raible having failed to present himself pursuant to the court's order, his action was formally dismissed and the Court of Appeals, on appeal, affirmed such judgment. A notice of appeal as of right and a motion to require the Court of Appeals to certify its record were filed in this court. The appeal as of right was dismissed but the motion to certify was allowed, and the matter is presently here for disposition on its merits.
Mr. William J. Kraus, for appellant.
Messrs. Corrigan, McMahon Corrigan, for appellees.
The one question before the court on this appeal is whether, on the facts narrated in the statement of the case, the trial court possessed the authority to dismiss the action, and, if so, was such authority properly exercised.
It is apparent from the record that William J. Kraus, an attorney at law duly admitted to practice in the courts of Ohio, has represented Raible throughout this cause. He affixed his name as attorney to the amended petition, he was personally present during all the proceedings in the trial court and he appeared for Raible in the appeals in the Court of Appeals and in this court.
Section 11586, General Code (Section 2323.05, Revised Code), provides:
"An action may be dismissed without prejudice to a further action:
"* * *
"2. By the court, when the plaintiff fails to appear on the trial;
"* * *
"5. By the court, for disobedience by the plaintiff of an order concerning the proceedings in the action * * *."
The counterpart of subdivision 5 above quoted was applied by a trial court in dismissing an action where the plaintiff refused to obey an order to elect against which of two defendants he would prosecute his action, and both the Circuit Court and this court approved such procedure. French, Admr., v. Central Construction Co., 76 Ohio St. 509, 81 N.E. 751, 12 L.R.A. (N.S.), 669, 118 Am. St. Rep., 891.
In 6 Ohio Jurisprudence (2d), 56, Section 38, the following statement is made:
"The general agency rule that the principal is chargeable with and bound by the knowledge of or notice to his agent received by the agent in due course of his employment, with reference to matters to which his authority extends, even though such knowledge or notice is not actually communicated to the principal, applies to the relation of attorney and client, and an attorney's notice or knowledge of facts affecting the rights of his client will be considered notice to the latter. Thus, the rule applies to notice to an attorney in connection with a pending judicial proceeding, it being said that if this were not so, the orderly and effective administration of justice would be thwarted, and by carelessness or collusion unseemly and unjust delays would be judicially sanctioned."
And in American Export Inland Coal Corp. v. Matthew Addy Co., 112 Ohio St. 186, 147 N.E. 89, this court held in the second paragraph of the syllabus:
"The general rule that notice to an agent is notice to his principal applies to the relation of attorney and client, and an attorney's notice or knowledge of facts affecting the rights of his client will be considered notice to the latter."
Compare Lutz v. Evatt, Tax Commr., 144 Ohio St. 635, 60 N.E.2d 473.
Such statements represent the view of courts generally. See 5 American Jurisprudence, 302, Section 74; 7 Corpus Juris Secundum, 853, Attorney and Client, Section 69.
Notice to the attorney of a party to a legal proceeding respecting matters arising and orders made during the course of litigation is generally imputable to such party. 7 Corpus Juris Secundum, 865, Attorney and Client, Section 69. Compare Roma v. Industrial Commission, 97 Ohio St. 247, 250, 119 N.E. 461, 462.
Thus, in the case of Dillon v. Hawkins, 147 Ark. 1, 6, 227 S.W. 758, 760, the court remarked:
"Ordinarily litigants appear by attorneys, who act for them. Litigants are, therefore, necessarily charged with any knowledge possessed by their attorneys in regard to the orders of the court relating to the trial of the causes, and Dillon must, therefore, be charged with the knowledge of his local attorney, although that attorney had failed to communicate the knowledge to him."
Raible instituted the present action and employed Kraus as the attorney to represent him in the litigation. As an incident to the allegations of the amended petition and the relief sought thereby, an affected party defendant moved the court for instructions pertaining to a relevant matter. Although subpoenaed to appear in court in connection with the hearing of such motion, Raible failed to respond.
The powers of a trial court over the conduct of litigation are broad, and when necessary it may resort to drastic measures to control and discipline recalcitrant litigants.
In our opinion the trial court possessed the authority to make the order that Raible appear in court to shed light on a complication precipitated by the filing of his amended petition, under penalty of having his action dismissed for disobedience of such order, and we believe that subdivision 5 of Section 11586, General Code (subdivision E, Section 2323.05, Revised Code), was properly applied by the trial court in the situation presented. Moreover, notice to Kraus of the proposed dismissal for disobedience of the court's order was notice to Raible.
Let it be observed in passing that Raible's attitude persistently displayed in this and related litigation is not to be commended. The dilatory tactics he has pursued at every opportunity have sorely tried the patience of several courts.
Upon the basis of what has been said, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MIDDLETON, HART, STEWART and LAMNECK, JJ., concur.
TAFT, J., not participating.