Daly v. Gardner , 1 Alaska 357 ( 1901 )

WICKERSHAM, District Judge.

It has been decided in a large number of cases that the inattention and neglect of the attorney is the inattention and neglect of the client; that a default will not be opened where the attorney has simply neglected his duty, and allowed a default to be entered against his client, unless some other feature calling more loudly for the interposition of the equity power of the court presents itself. There are some features of this application that strike the court as peculiar. One of them is the affidavit of Dr. Koons. It seems to have been made in Franklin county, Pa., on the 4th day of May, 1901, prior to the time when Gardner left that state to return to Nome. In his affidavit he makes the statement that he returned to Nome on the 20th day of June, “and to affiant’s surprise learned that neither the said Crews nor the said Zimdars had remained in Nome during the winter of 1900-1901, and that the said Crews and the said Zimdars had made no appearance for affiant in the above-entitled suit, but that a default had been taken and entered against affiant in the above-entitled suit, and a judgment issued thereon, and affiant’s property sold under execution.” The query in the mind of the court is, if he knew nothing of this default judgment, and was surprised to learn of it when he returned in June, for what purpose did he have the affidavit of Dr. Koons made on May 4th, who therein states so many reasons why the default should be set aside. The defendant stands in a very poor attitude to come into this court and ask the equitable interposition of the court to set aside a judgment made almost a year ago, under which third parties have acquired title to real estate,- when it appears that he had personal service of the summons, and that he personally violated the injunction of the court in this suit in connection therewith. He treats the process of the court with disrespect on the one hand, and asks for its equitable assistance on the other.

It is admitted by the defendant that’ he and the plaintiff were partners in the mines in question, and that their respective interests are correctly stated in the complaint. The only contention between the partners is the amount of gold extracted from the claim for which the defendant failed and refused to make any accounting. He now complains of the ■finding of the court upon that question. Upon- his own showing, one Coulter kept certain books showing the cleanups from these mines, and it appears in the record that these very books were used for the purpose of determining this question. Instead of giving his aid and assistance to the court in determining the contention, instead of respecting the injunction of the court that was personally served upon him, instead of entering his appearance in this action and defending it, the defendant, having personally notice of the plaintiff’s claim, left the country carrying with him whatever gold dust came from this claim, in violation of the injunction, and he cannot now be heard to say that the court did -wrong.

Upon a careful examination of this record, I am confident that there is no reason, either in equity or law, why the defendant Gardner should have the judgment vacated and be allowed to defend. He was given personal notice, but contemptuously, and in violation of the injunction of this ■court, left the country, and declined to come into this court and claim his rights. The court now declines to afford him .any relief, and the application to open the default is denied.