Mitchell v. McDonald ( 1943 )

I dissent. I read both the record and the law somewhat differently from what is expressed in the majority opinion.

This is a suit in equity. The plaintiff, Merle Mitchell, an infant, by his guardian, commenced the suit against the defendant, Madilon McDonald. The plaintiff, Merle, seeks to remove a cloud upon the title to residential property in Philipsburg cast by the adverse claim of Madilon McDonald to an undivided one-half interest therein. Plaintiff's complaint was filed by Edwin T. Irvine, Esq., as the attorney at law for plaintiff.

The defendant, Madilon McDonald, appeared in the action by her husband and attorney, J.J. McDonald, of Philipsburg, who filed an amended answer and cross-complaint wherein was brought into the case, and named as a party defendant, one Mary C. Mitchell, she being the stepmother of the plaintiff, Merle. In her cross-complaint Madilon McDonald pleaded that the defendant Mary C. Mitchell adversely claims an interest in the property in question and prays that the court adjudicate such adverse claim of the defendant Mary C. Mitchell.

The plaintiff, Merle, through his attorney Edwin T. Irvine, Esq., filed a reply. The cause proceeded to trial before the court without a jury on the complaint of plaintiff, the amended answer and cross-complaint of Madilon McDonald and plaintiff's reply thereto. The defendant Mary C. Mitchell did not appear and her default was entered on motion of the defendant and cross-complainant, Madilon McDonald. The issues were, by the trial court, found for the plaintiff, Merle, and from the judgment entered in plaintiff's favor the defendant and cross-complainant has attempted to appeal.

While the majority opinion holds that this court has acquired no jurisdiction to hear or determine the attempted appeal and can only dismiss the proceeding, yet the court, without jurisdiction so to do, makes exhaustive inquiry into various specifications assigned and contentions made by Madilon McDonald herein.

Seizing upon the fact that twenty days before the trial the plaintiff became of age, Madilon McDonald, in the trial court, unsuccessfully moved "that plaintiff's case be dismissed." The district court denied the motion. The majority opinion inquires into the correctness of the district court's aforesaid ruling and announces, what I consider to be questionable rules of practice and unsound, as well as most dangerous and far-reaching principles of law.

To my mind it was wholly immaterial whether, on the day ofthe trial, plaintiff then was an adult or an infant. It mattered not if the authority of plaintiff's guardian had terminated. Such facts or conditions gave rise to no right in Madilon McDonald to question, in this court, the authority of plaintiff's attorney to represent plaintiff in this cause. These matters were not in issue in the trial court. They are not in issue here.

In paragraph 1 of Madilon McDonald's cross-complaint she alleged that plaintiff "is a minor, under the age of twenty-one years and that C.H. Degenhart is now the duly appointed, qualified and acting Guardian of the estate of said minor, and as such guardian brought this action for and on behalf of" plaintiff. In paragraph 4 of his reply "the plaintiff admits the allegations of paragraph 1 of the said defendant's cross-complaint." Thus is inquiry precluded by the admissions in the pleadings of the facts exactly as they are alleged.

Under the admissions in the pleadings, the testimony adduced, respecting the age of the plaintiff at the day of the trial; respecting the contents of the letters of guardianship issued to C.H. Degenhart and the testimony of the clerk of the court that such letters had not been revoked, were each and all matters foreign to any issue in the case. Such evidence was wholly immaterial. It has no place in this record. It is but a red herring dragged across the trial. With it we should not be concerned. By it we must not be misled.

This action involves the title to plaintiff's property. Plaintiff had the right to commence the suit. He had the right to prosecute the suit. He had a right to proceed to trial. At the trial he had a right to present to the court material and competent evidence in support of his suit. Throughout the proceedings, from their very inception to their final termination, he had the right to be represented by counsel. These are rights which every plaintiff has, be he adult or infant. What matters it, then, whether on the day of the trial plaintiff then was an infant or an adult? That he was there represented by counsel protecting his rights and interests is sufficient.

When this suit was commenced, plaintiff was an infant. His rights were safeguarded and protected by a duly appointed guardian and by a duly licensed attorney at law. His action was commenced in manner required by statute. His complaint is properly entitled "Robert Joseph Mitchell (otherwise known as Merle Mitchell), a minor, by his Guardian, C.H. Degenhart, Plaintiff vs. Madilon McDonald, Defendant." Edwin T. Irvine, Esq., appears as the attorney of record for plaintiff throughout the entire case from the filing of plaintiff's complaint in the court below to the preparing and filing of two briefs in this court. Attorney Irvine was personally present and orally argued plaintiff's cause before this court. At no time and at no stage of plaintiff's case, either in the court below or in this court, has attorney Edwin T. Irvine failed to be on the job representing plaintiff, fighting for him and protecting his rights and estate.

The defendant, Madilon McDonald, likewise has been represented in this action by counsel, first, by her husband, J.J. McDonald, and subsequent to his disbarment (In re McDonald, 112 Mont. 129,113 P.2d 790), by S.P. Wilson, Esq. In her amended answer and cross-complaint Madilon McDonald claims ownership of an undivided one-half interest in the dwelling house left by plaintiff's mother at her death. She seeks affirmative relief against plaintiff. She asks for partition. She requests the court to order the dwelling house sold and the proceeds of the sale divided. She demands one-half of these proceeds. She testified such half to be of the reasonable value of about four or five hundred dollars. The remaining half she would deplete by taking therefrom her costs, including an item of $100 claimed for fees for her attorneys and an item of $150 claimed as the reasonable worth of an abstract of title to the property typed by herself and certified to by her husband, J.J. McDonald.

Thus, should the cross-complainant, Madilon McDonald, prevail, plaintiff's estate would go on the block at forced sale and the proceeds of such sale would practically all go to Madilon McDonald. Plaintiff would thereby be put out of both home and purse.

When plaintiff's reply was filed and his case became at issue, he was still a minor. Two months thereafter and but twenty days before the trial occurred, the plaintiff became of age. Much ado is made about plaintiff's twenty-first birth anniversary. What possible difference can it make as to whether, at the time of trial, plaintiff was then a minor of the age of twenty years, or an adult of the age of twenty-one years plus twenty days? Irrespective of his age, whether young or old, infant or adult, plaintiff's case was at issue and he had the right to have it tried.

The record shows the "cause came on for trial regularly" and "Edwin T. Irvine, Esq., appeared on behalf of plaintiff in the action and S.P. Wilson, Esq., appeared on behalf of the defendants in the action." Thus was plaintiff, by his counsel, present at the trial. This right is accorded him by the law. (State ex rel. Rubin v. District Court, 62 Mont. 60, 65,203 P. 860.)

The trial proceeded with plaintiff represented throughout by Edwin T. Irvine, Esq., and the cross-complainant Madilon McDonald represented throughout by S.P. Wilson, Esq. The plaintiff's former guardian, C.H. Degenhart, appeared at the trial and testified as a witness for plaintiff, as did E.J. Donnelly, the clerk of the court; two deeds were admitted in evidence, and plaintiff rested his case.

Madilon McDonald, her husband J.J. McDonald and plaintiff's father Harold Mitchell, then testified as witnesses on behalf of Madilon McDonald; three deeds and the abstract of title were received as exhibits; two of such deeds having already been introduced in evidence by plaintiff, and Madilon McDonald then rested her case.

There is nothing novel, there is nothing unusual about a youthful plaintiff becoming of age pendente lite. The course of the law may be slow but "Time Marches On." Many times in the past have parties to lawsuits become of age before the litigation in which they were involved had terminated. Many times will this occur in the future. The merits of the lawsuit and the progress of the litigation are not affected by such an ordinary and simple event as a twenty-first birth anniversary.

"The fact that a minor plaintiff attains majority during the pendency of an action in his name by next friend or guardian is not ground for abatement or dismissal of the action; but the proper procedure in such case is to strike the name of the guardian or next friend from the record and leave the cause stand in the name of the real party, though the failure to do so is an irregularity which does not affect the substantial rights of the other party." (6 Bancroft's Code Practice Remedies, sec. 4865, p. 6381.) Nor will an action by a personal representative be dismissed on account of his discharge following distribution of the assets of the estate; the cause of action passes to the distributees. (Heywood v. Ogden Motor Car Co., 71 Utah 417,266 P. 1040, 62 A.L.R. 1232.) In the instant case there was no suggestion that the name of the guardian be stricken. The failure to strike his name is a mere irregularity which does not prejudice the defendant and cross-complainant, Madilon McDonald, in any manner and which cannot affect any of her substantial rights. The statute expressly provides that "the action * * * may be continued in the name of the original party." (Sec. 9086, Rev. Codes.)

Thus on the failure to strike the guardian's name nothing happens. The litigation, including the trial, proceeds exactly as it would had no twenty-first birth anniversary occurred.

After all, September 20, 1941, was a day to be celebrated by plaintiff. It was the anniversary of his birth. It was the day he became freed of the disabilities of infancy. It was the day he became "free and 21." It was the day of his emancipation. His powers and authority increased. He could now stand on his own and act with a free hand. He could now ratify contracts and engagements theretofore made by himself or his representatives, or, "within a reasonable time afterwards," he could disaffirm same. (Sec. 5680, Rev. Codes.) Plaintiff has not disaffirmed the acts done herein in his behalf by his representatives including his attorney. A reasonable time has elapsed. By his silence and acquiescence plaintiff must be held to have ratified their acts.

Instead of following the simple procedure of moving to strike the name of plaintiff's guardian, Madilon McDonald sought to urge, as a bar to plaintiff's cause of action, the fact that plaintiff had become an adult pendente lite, and at the conclusion of all the evidence in the case she made a motion "that plaintiff's case be dismissed." Madilon McDonald assigns as grounds for her motion: (1) That plaintiff is an adult; (2) that the guardianship has terminated, and (3) that plaintiff's former guardian "Degenhart is not a party to this action in any sense." None of these grounds is valid. The emancipation of the plaintiff did not put an end to his lawsuit; it did not bar it; it did not abate it. The guardian, C.H. Degenhart, never was a party to this action, either before or subsequent to the emancipation of plaintiff. This suit was commenced in the name of the plaintiff Robert Joseph Mitchell, otherwise known as Merle Mitchell, who was and is the real party in interest. The action has since continuously been prosecuted in the name of such real party in interest. The guardian, C.H. Degenhart, was not the real party in interest, nor was he even a party to the action. He simply took care of the ward's interests in this action, as he did in the case ofMitchell v. Columbia Casualty Co., 111 Mont. 88, 106 P.2d 344, heretofore considered by this court. "The real party in interest is the party who is to be benefited or injured by the judgment in the case, * * *. A guardian is not permitted to bring suit in his own name, and in his individual capacity, for money or other property belonging to the ward. He appears in the action simply to manage and take care of the interests of the ward or infant for whom he appears; he does not thereby become a party to the action." (1 Bancroft's Code Pleading, secs. 120, 121, pp. 232-234).

Section 9067, Revised Codes, requires, with certain exceptions, that every action must be prosecuted in the name of the real party in interest, but the plaintiff here has fully complied with such statute the object of which is simply to save a defendant, against whom a judgment is obtained, "from further harassment or vexation at the hands of other claimants to the same demand, and to prevent a claimant from making a simulated transfer, and thus defeating any just counterclaim or set-off which defendant would have to the demand if pressed by the real owner. But the right of the defendant under the statute is limited to its purpose." (1 Bancroft's Code Pleading, sec. 122.)

The trial court found that the defendant, Madilon McDonald, has no right, title or interest in the property. And "the question whether the plaintiff is the real party in interest does not concern defendants, who have no defense." (1 Bancroft's Code Pleading, sec. 122, p. 236.)

On the day of the trial it mattered not whether plaintiff was then an adult or an infant. Mr. Irvine represented plaintiff at the trial. He conducted plaintiff's litigation. He protected plaintiff's property and interests. He won plaintiff's lawsuit. A decree was entered in his client's favor. Plaintiff has manifested no dissatisfaction with the outcome of his case. He has never questioned the authority of his attorney, Mr. Irvine. Plaintiff became of age in 1941, yet here, in the year 1943, Mr. Irvine continues to represent him in this action and in this court as his attorney. Apparently Mr. Irvine has done right well by plaintiff and plaintiff is content to let well enough alone and to trust Mr. Irvine to continue to represent plaintiff's interests until the final termination of the litigation. Mr. Irvine's authority to represent plaintiff as his attorney was never questioned in the trial court and it has never been properly questioned in this court. It has never been an issue in the case.

It is the losing party, Madilon McDonald, who is dissatisfied with the decree. It is she who comes here seeking relief therefrom. The statute provides a method whereby in a proper case the authority of an attorney may be questioned by the adverse party. This statutory method has not been followed. Had it been followed and had Mr. Irvine's authority to represent plaintiff been made an issue, I have no doubt but that proper and formal warrant of attorney from plaintiff would have been produced. Without properly raising the issue and giving counsel opportunity to meet it, Mr. Irvine's authority to represent the plaintiff cannot here be questioned. Mr. Irvine is presumed to have authority to act for and represent plaintiff until the contrary is shown. (Missoula Belt Line R. Co. v. Smith, 58 Mont. 432,193 P. 529, 531.)

"The universal rule is, where an attorney appears and undertakes to act for another in a capacity, and for a purpose, within the scope of the ordinary powers of a duly licensed practitioner, his authority to so act will be presumed, and in the absence of a sufficient showing to the contrary, the adverse party, having no notice or ground of suspicion, may act on that presumption. * * * So, after recovery of judgment the attorney who procured it * * * may appear and act for the judgment creditor in ulterior proceedings, and the court will presume that he is authorized to so act, in the absence of any showing to the contrary. * * * The authority of an attorney to represent a party has been presumed from the filing of pleadings. * * * It is immaterial whether the litigant for whom the attorney appears is a natural, or an artificial person, * * * or an infant * * * or even though the suit be entered by one person to the use of another. * * *" (1 Thornton on Attorneys at Law, sec. 230, pp. 415-419.)

In Osborn v. Bank of United States, 9 Wheat. 738, 829, 830, 6 L. Ed. 204, the Supreme Court of the United States said:

"Natural persons may appear in court, either by themselves or by their attorney. But no man has a right to appear as the attorney of another, without the authority of that other. In ordinary cases, the authority must be produced, because there is, in the nature of things, no prima facie evidence that one man is in fact the attorney of another. The case of an attorney-at-law, an attorney for the purpose of representing another in court, and prosecuting or defending a suit in his name, is somewhat different. The power must indeed exist, but its production has not been considered indispensable. Certain gentlemen, first licensed by government, are admitted, by order of court, to stand at the bar, with a general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause, has always been received, as evidence of his authority; and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any state, or of the Union. * * *

"The universal and familiar practice, then, of permitting gentlemen of the profession to appear, without producing a warrant of attorney, forms a rule, which is as applicable in reason to their appearance for a corporation, as for a natural person. Were it even otherwise, the practice is as uniform and as ancient, with regard to corporations, as to natural persons. No case has ever occurred, so far as we are informed, in which the production of a warrant of attorney has been supposed a necessary preliminary to the appearance of a corporation, either as plaintiff or defendant, by a gentleman admitted to the bar of the court. The usage, then, is as full authority for the case of a corporation, as of an individual. * * *

"No reason is perceived why the courts of chancery should be more rigid in exacting the exhibition of a warrant of attorney than a court of law; and since the practice has, in fact, been the same in both courts, an appellate court ought, we think, to be governed in both by the same rule."

In Hardin v. Ho-yo-po-nubby's Lessee, 27 Miss. 567, 579, the Supreme Court of Mississippi said: "An attorney is an officer of court, and responsible to the court for the propriety of his professional conduct, and the proper use of the privileges he has as such. * * * He is permitted, by almost universal practice in this country, to do so under verbal retainer, and it is only in cases of clear want of authority or abuse of his privilege that he is held to be incompetent to institute a suit or represent a party in court. The presumption is in favor of his authority, and though he may be required to show it, yet if he acts in good faith and the want of authority is not manifest, he will not be held to have acted without authority, because it is not shown according to strictly legal rules. If this were not so, the greatest inconvenience in practice would continually occur both to clients and attorneys; for suits are frequently instituted by attorneys under the authority of letters from their clients, who are strangers, and whose handwriting is unknown to them, and could not be proved without great trouble and delay. * * * All that is required to be shown in such cases in the first instance, is, that the attorney has acted in good faith and under an authority appearing to be genuine, though informal."

I cannot subscribe to the novel theories advanced by the majority of this court to the effect that the day plaintiff became of age "a definite break occurred" in the "continuity" of the employment of Edwin T. Irvine, Esq., as attorney for plaintiff in this action; that on that day plaintiff's attorney was ipso facto directed by the law to cease firing; that on that day plaintiff's attorney was "automatically" relieved of his command of the litigation; that from that day forward plaintiff had "no representation in the suit, and the proceedings should be suspended until the defect of representation was remedied;" that upon the arrival of that day plaintiff was required to elect "to proceed by appearing, obtaining leave to file, and filing an amended complaint" in his own name; that before the arrival of that day it became the duty of the guardian to make to plaintiff "the necessary disclosure and explanation to make the transition effective," and "that he did so * * * is entirely negatived by the insistence of the guardian and attorney that the guardian and therefore the attorney under his authority were still authorized to conduct and were still conducting the litigation under that authority;" that "upon proof of the plaintiff's majority and the resultant termination of the guardian's authority * * * which removed any possible presumption that counsel had direct authorization from plaintiff, the court should have stayed all proceedings until such authorization was shown or until it was otherwise shown that the plaintiff had assumed control of the litigation either personally or by counsel authorized by him."

Again may I inquire: Exactly who became twenty-one on September 20, 1941? Whose birthday was then celebrated? Was it that of the appellant, Madilon McDonald, or was it that of respondent, Merle Mitchell? The appellant may not seize upon the emancipation of respondent as a justification for ousting respondent's attorney and walking away with his lawsuit?

After declaring in effect, if not in words, that plaintiff's attorney, after September 20, 1941, became an unauthorized intermeddler, the majority opinion seeks to remove the sting and stigma from its holding by saying: "This is not intended as a criticism of counsel, for there is no question of his good faith, and the point seems never to have been directly determined by this or any other court in a similar situation, so far as we have been able to find." The answer is, "Seek and ye shall find." Here are the decisions. Here is the law:

"An action brought by a guardian or next friend is not abated by the attainment of majority of the ward or infant pendentelite." (1 C.J.S., Abatement and Revival, sec. 110, page 155.)

"An action * * * shall not abate by death, or other disability of a party, or by the transfer of any interest therein * * *; and in case the action has been begun * * * the court shall, on motion, allow the action or proceeding to be continued by * * * his representatives or successors in interest. In case of any transfer of interest, the action or proceeding may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action or proceeding." (Sec. 9086, Rev. Codes.)

In Johnson v. Alexander, 66 Okla. 128, 167 P. 989, 991, the court said: "It is the contention of the defendants that the court erred in not dismissing said cause when it was disclosed by the evidence during the trial that the plaintiff had reached his majority. The rule seems to be well established that where an action is commenced by a minor, by his next friend or guardian, and the minor reaches his majority during the pendency of the cause, the cause does not abate, and the arriving at majority by the minor is not grounds for dismissal of said cause. (Bernard v. Pittsburg Coal Co., 137 Mich. 279, 100 N.W. 396; 22 Cyc. 671".

In Lambert v. Corbin, 194 Ky. 373, 239 S.W. 453, 454, the court said: "The first contention is that the trial court erred in refusing to instruct the jury to find for the defendant at the conclusion of all the evidence. It is not said that there was not sufficient evidence to take the case to the jury on its merits, but it is argued that, as the suit was brought in the name of appellee by his next friend, and appellee arrived at the age of 21 before the trial, but the name of the next friend was not stricken from the proceedings, the motion should have prevailed. This contention in our opinion is not maintainable. Section 35, subsection 3, of the Civil Code provides that suits of an infant, in certain designated cases must be brought by his next friend. However, in all such cases the infant is himself the plaintiff. This was held in Clements v. Ramsey, etc., 4 S.W. 311, 9 Ky. Law Rep. 172. Upon the appellee's becoming of age the next friend was no longer a necessary party, and the action as to him abated. The appellee having been the plaintiff from the inception of the action, the fact that the next friend's name was not stricken from the proceeding did not, in our opinion, invalidate the proceeding, or entitle appellant to a directed verdict."

In Bernard v. Pittsburg Coal Co., 137 Mich. 279,100 N.W. 396, 399, the court said: "When this suit was commenced, plaintiff was a minor, and it was brought in his name by his father as next friend. When the trial occurred plaintiff had reached his majority, and it is insisted that the suit cannot be prosecuted under the original declaration. It is well settled that plaintiff, on arriving at his majority, may, if he elects, prosecute a suit commenced when he was a minor by his next friend. [Citing cases.] It seems proper in such a case by a formal amendment of the record to show that the suit is prosecuted by plaintiff himself. This may be done either by striking out the name of the next friend (see Sims v. Renwick [25 Ga. 58]; Lasseter v. Simpson, supra [78 Ga. 61,3 S.E. 243]) or by a suggestion of record that plaintiff has attained his full age (see Shuttlesworth v. Hughey; Clements v.Ramsey, supra). We should not, however, reverse a judgment for a failure to make such an amendment, which it seems may be made as a matter of course (see Clements v. Ramsey, supra), unless that failure was in some manner prejudicial to defendant."

In McCarthy v. Anable, 169 Misc. 595,7 N.Y. Supp. 2d 887, 890, the court said: "The rule adducible from these authorities is that where no suggestion or motion is made during the pendency of the action the validity of the proceedings or the judgment entered will not usually be affected by a failure to strike out a guardian for an infant party who has become of age. Where prejudice may be shown to an adverse party by the failure of the infant himself to make the formal correction of the record and prosecute in his own name, the remedy after judgment would seem to be afforded by a motion by the adverse party for an ordernunc pro tunc striking the guardian from the action, as was suggested by the dictum of Bernard v. Pittsburg Coal Co., supra."

In Cahn v. Schmitz, (1941), 56 Ariz. 469,108 P.2d 1006, 1008, the court said: "It is next said that when the written judgment was entered March 11, 1940, William Schmitz, the plaintiff, had reached his majority; that his guardian adlitem's authority had terminated, and that ``she is no longer entitled to judgment herein.' * * * While the plaintiff's pleadings make the guardian ad litem the plaintiff, under the statute the action is by the infant and should be brought and prosecuted in his name. However, no exception has been taken to this departure from the statute. The case has proceeded thus far without any objection. The error of the pleader, in assuming that the action was in the name of the guardian ad litem instead of that of the minor child, in no way affects the merits of the case. The action was the minor's action and the judgment is his also. The fact that the guardian ad litem, who was plaintiff's mother, took an active part in the trial of the case, as well as in securing the entry of proper judgment, does not change the law that makes such action the infant's. After plaintiff reached his majority, the name of his guardian ad litem in the trial of the action and in subsequent orders should have been dropped but that this was not done can in no wise affect the merits of the case. (Johnson v. Alexander, 66 Okla. 128, 167 P. 989)". (See, also,Smith v. Mingey, 76 N.Y. Supp. 194, 72 A.D. 103.)

In Hartford Accident Indemnity Co. v. Goldberg,178 Okla. 75, 61 P.2d 704, 706, the court said:

"During the pendency of this action, the minor, Lester Goldberg, reached his majority and had disappeared, and not even his guardian had seen him for a long time before he became of age, nor had he taken any steps after attaining his majority which might be taken as an election to proceed with the action in his own right. Contention is made by plaintiff in error that in this state of case the action abated until the ward came into court and made some affirmative election to proceed with the same. * * *

"The same guardian and the same attorneys continued to participate in the case, and at least the presumption would be in favor of and not against the authority of said attorneys to represent said plaintiff in the absence of a disaffirmance on the part of the plaintiff, and in such situation the court would be warranted in presuming an election to proceed. (Webb v.Harris, 32 Okla. 491, 121 P. 1082, Ann. Cas. 1914A, 602;Johnson v. Alexander, 66 Okla. 128, 167 P. 989; Phelan v.Stockyards Bank, 168 Okla. 232, 32 P.2d 270."

Throughout the entire case Madilon McDonald recognized the authority of Mr. Irvine to act for and represent plaintiff in this action. Long after the trial, appellant recognized Mr. Irvine's continuing authority to act as attorney for plaintiff. Madilon McDonald's notice of appeal is addressed: "To the above named plaintiff and Edwin T. Irvine, his attorney." By this notice so directed she brought Mr. Irvine before the bar of this court. The notice of appeal was never personally served on plaintiff. If Mr. Irvine was and is without authority to represent the plaintiff in this case after September 20, 1941, then it follows that he was and is equally without authority thereafter and in July, 1942, to accept service on plaintiff's behalf of the notice of appeal herein. No authority in Mr. Irvine spells no service of the notice on appeal on plaintiff, and no service of the notice on plaintiff spells no jurisdiction in this court to hear or determine the attempted appeal. By what right comes plaintiff here? It would seem that by her conduct is Madilon McDonald estopped to deny the authority of attorney Irvine to act for or to represent respondent as the latter's attorney in this litigation.