Jenkins v. Barber ( 1904 )

Calhoon, J.,

delivered the opinion of the court.

E. M. Bajber filed a bill, in his own name alone, making W. H. Maybin and the appellant parties defendant thereto. This bill charges that Barber & Maybin were partners, to whom, as such partners, appellant gave a note, and executed a trust deed to secure it, payable to said Barber & Maybin, and that the note is past due and unpaid and has been lost or destroyed, and that the firm has been dissolved; and the prayer is that the land on which the trust deed was given Tie sold to pay the debt, and that of the proceeds sixty-two and one-half per cent be paid to Barber, and thirty-seven and one-half per cent be paid to the defendant, Maybin. To this bill there appears an answer by W. II. Maybin, which answer admits the execution of the note and trust deed, but sets up that at the dissolution of the firm of Barber & Maybin this note and trust deed, by agreement, became “the sole property of Maybin, and denies that Barber has any interest in them. There also appears the answer of the appellant, averring her understanding’ that the note was payable to Maybin only, and that she had told Barber that she did not desire his services, and that she never employed him directly or indirectly, bnt repudiated his connection with the case. Her answer further avers that she is not indebted to Barber to any amount whatever, and that if he ever had any interest in it, the same went to Maybin on the dissolution of the firm of Barber & Maybin. On this answer it is plain that no decree should be rendered against appellant in favor of Barber without evidence; and it is also plain that no decree could be rendered against her in the cause in favor of Maybin, shaped as it is. Appellant’s answer does not appear to have been filed through the intervention of any attorney whatever. We next find a motion to the court in the following words:

“E. M. Barber v. Alice Cooper et al. Now come defendants and move the court to allow them to withdraw their answers in the above-styled case. [Signed] W. H. Maybin, per Joe H. Mize.”

Mr. Maybin, being in a position adversary to Mrs. Cooper, who now by marriage has become Mrs. Jenkins, of course could not act as her counsel, unless, if at all, upon express showing by the record of such authorization.

We next find in the record, without any disposition whatever of this motion, another motion for a decree pro confesso in the cause, and afterwards a decree reciting that it was on the motion for the decree pro confesso, and reciting that, “it further appearing that said Alice Cooper and W. H. Maybin have withdrawn their answers to said bill of complaint,” it was decreed that the bill be taken as confessed against both defendants; and next we find a final decree, without proof, establishing the debt, and ordering the sale of the land to pay it, and this final decree gives four-sevenths of the proceeds to Barber, and three-sevenths to Maybin — a proportion differing from the claim of this bill— and saddles all the costs of the suit on appellant. There haying been no disposition of the motion to withdraw the answer of appellant, in the peculiar attitude of this suit the court had no right to enter a final decree against her for the joint payment to' Barber & Maybin and to saddle all the costs on her. It may be that appellant has a perfect defense to any proceeding on the part of Maybin, and she had the right to have Barber’s claim against her settled in the' orderly administration of justice.

After appellant had taken her appeal on this record, Mr. Maybin filed in this court an affidavit to the effect that he had been employed by appellant as a practicing attorney to represent her in that cause, and that, by an agreement between appellant, Barber, and himself, the answer of appellant was withdrawn by him through Mr. Joe H. Mize, and that the motion was accordingly made by Mize, the then partner of Barber, and that this was done with appellant’s knowledge and consent. Of course no affidavit can be heard to help out a record, and so we can take no notice whatever of Mr. Maybin’s affidavit in the disposition of this case.

Reversed and remanded.