Opinion
No. 76.
Submitted January 30, 1973. —
Decided February 27, 1973.
APPEAL from an order of the county court of Walworth county: JOHN D. VOSS, Judge. Affirmed.
For the appellant the cause was submitted on the briefs of Prazak Geffs of Clinton.
For the respondent the cause was submitted on the brief of William H. Freytag of Elkhorn.
Facts.
This is an appeal from an order denying defendant-appellant's motion for summary judgment.
On August 14, 1965, the plaintiff-respondent and her husband, Robert Sinnott, were fee simple owners of a certain parcel of real estate. On that date, they entered into a land contract for the sale of the realty with the defendant-appellant, Virginia Porter, and her husband, Glen Porter. (Glen Porter was later killed in an accident and all of his rights under the contract were transferred to his wife, Virginia.)
On November 12, 1965, Louise Sinnott and her husband, Robert Sinnott, were divorced in the circuit court for Walworth county. Under the divorce judgment, the land contract was divided, one half to the wife, one half to the husband. (Subsequently, Robert Sinnott died.) By deed from a daughter, who inherited Robert Sinnott's one-half interest, plaintiff acquired and now owns the entire vendor's interest in the land contract.
The complaint in this action alleges that the defendant has failed to make payments on time and is sixty days in arrears; that real estate taxes are delinquent for the years 1968, 1969 and 1970; and that the required insurance policy has not been furnished. Plaintiff seeks judgment requiring the defendant to pay the amount of principal and interest "actually due" on the contract. In default of such payment, plaintiff seeks to have defendant's interest in the property foreclosed. The state of Wisconsin, through its department of revenue, is named as a defendant because it is alleged to have an income tax lien against the property which plaintiff seeks to have declared subordinate to her interest in the property.
Defendant Virginia Porter answered, contending that, in order to carry out the division of the property in the divorce action of Louise and Robert Sinnott, the circuit court for Walworth county authorized the plaintiff's (Louise Sinnott's) attorney in that action, Gerald Jaeckle, to execute all papers necessary for the division of property in the divorce action. The defendant contends that, but for plaintiff's refusal to sign a deed or cooperate, the defendant could have obtained a mortgage and paid the amount due on the contract. Defendant alleges that, because of the preceding, plaintiff's attorney, pursuant to the authority given him by the circuit court, entered into a new agreement to deliver a warranty deed to the defendant upon payment of the balance due. Defendant alleges that, at the same time, a warranty deed was executed by Robert Sinnott and Gerald Jaeckle, as attorney in fact for Louise Sinnott, and placed in the hands of an escrow agent to be delivered to defendant upon payment of the balance due.
The new agreement called for minimum payments of $40 per month, instead of the $50 payments under the original agreement, with one half to be paid to Robert Sinnott and one half to plaintiff. Defendant alleges that such payments have been made and that the amount due is $3,289 rather than the $4,516.20 alleged to be due by the plaintiff. Defendant alleges that arrangements have been made for payment of real estate taxes and that such payments are being made on a monthly basis. Defendant alleges plaintiff has been furnished with an insurance policy on the property involved.
Defendant moved for summary judgment because the complaint was based on the original land contract rather than the subsequent agreement entered into by Robert Sinnott and Gerald Jaeckle, as attorney in fact for Louise Sinnott. Defendant appeals from the trial court's order denying the motion for summary judgment.
In denying the motion for summary judgment, the trial court held:
(1) The divorce court did not exceed its authority in directing plaintiff's attorney to execute all papers necessary for a division of the estate in the divorce action.
(2) The attorney so authorized exceeded his authority in entering into a revised or changed agreement for the division of the property involved.
Order involved
. The order of the divorce court involved or referred to provided:"It Is Hereby Ordered that Gerald Jaeckle, attorney for the defendant, [Note: plaintiff in the present case] is hereby empowered and directed to execute all papers . . . in the name of Louise C. Sinnott by himself as attorney in fact to divide the following property between the plaintiff and defendant, to wit:
". . .
"Land Contract of Glen and Virginia Porter in the amount of $4,600.00."
Authority of court
. The question of whether the divorce court exceeded its authority pursuant to a stipulation in directing an attorney in a divorce action to sign for his client papers she refused to sign cannot be raised. It runs smack-dab into the roadblock of the rule prohibiting collateral attacks upon court judgments. That rule, adhered to in Wisconsin, is as follows:"A judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment, in respect of its validity, verity, or binding effect, by parties or privies, in any collateral action or proceeding, except . . . for fraud in its procurement."
49 C.J.S., Judgments, p. 792, sec. 401.
However, the unavailability of the opportunity for collateral attack, it is to be hoped, will not lead to any implication of approval of a trial court's directing an attorney in a case to sign, on behalf of his client, a document that the client has refused and is unwilling to sign. Given a proper and direct attack, it is difficult to imagine the basis on which such direction to an attorney to act in a client's name against a client's wishes could be upheld. An attorney may serve as an attorney in fact, when so designated by his client, but he cannot be designated by a court against the client's wishes. An attorney is an officer of the court and an agent or legal representative of his client. But, as such court officer, he is not to be directed to sign a document in the name of his client where the client does not want him to do so or, in fact, want the document signed by her or on her behalf by anyone. We are appreciative of the difficulties of courts, particularly divorce courts, in winding up litigation. But there are other routes open, including contempt proceedings against the recalcitrant litigant and the authority given the court itself, that are open. "Drafting" an attorney to sign legal papers his client does not want signed is not one of them. This may be dicta here, but it is dicta that warns of reefs ahead for a procedure without statutory, common-law or commonsense justification.
See: Sec. 247.26, Stats., "Alimony, property division," providing, ". . . The court may also finally divide and distribute the estate. . . ."
Authority of attorney
. Not encountering the same roadblock is the trial court's finding that the attorney, directed to serve as "attorney in fact" for his client, exceeded his authority under the divorce court order so designating and directing him to act. It is not disputed that he did. No authority was granted the attorney to alter or change the provisions of the contract he was directed to sign in the name of his client. The agreement that he did sign departed from the original land contract, referred to in the divorce court judgment, in two significant respects: (1) Minimum monthly payments were reduced; and (2) no time limit for completion of the agreement was in the revised contract, whereas five years' limitation was in the original contract. The trial court properly found that the attorney exceeded his authority by entering into the new and revised agreement.Nor does the trial court's so holding constitute a collateral attack upon the divorce court judgment. Rather, the only issue is as to the scope of authority granted the attorney under the divorce court order. Construing or interpreting the order is not an attack upon it. The rule which so holds and which we accept as definitive is:
". . . Where no relief is sought against a judgment, as, for instance, where the proceeding is for the purpose of construing the judgment, or determining its scope and effect or its nature, there is no infraction of the rule against collateral attack."
49 C.J.S., Judgments, pp. 812, 813, sec. 408.
Under this rule, plaintiff's assertion that the attorney had no authority to enter into the new and revised agreement is not a collateral attack upon the judgment of the divorce court. It questions only the exact application of the words used in the earlier judgment. What is sought is a proper interpretation of the divorce court order and judgment. The validity of the new agreement being disputed and the lack of authority of the attorney to sign such agreement as "attorney in fact" not being disputed, it follows that the trial court's holding that motion for summary judgment be denied should be affirmed. The pleadings and the testimony at the time of trial may well raise factual questions as to the consequences of plaintiff's action in regard to the new agreement. All that is being decided now is that the trial court correctly found that the attorney exceeded his actual authority in signing the agreement and that the motion for summary judgment was properly denied.
By the Court. — Order affirmed.