Upon the trial of the application, by petition, to vacate the judgment, the following facts appeared: That W. E. Peterson was, when the original action was brought, a married woman, and is still the wife of her co-defendant in said action, W. S. Peterson; that Sibley & Harbert were employed to defend said action, by the other stockholder defendants, and not by W. S. or W. E. Peterson; that W. S. Peterson had conversations about said case with said attorneys, and in a manner, showing that he regarded them as attorneys for himself and wife, and they would have so acted but for a request by the other stockholders not to do so. That the Petersons were charged by another attorney, since deceased, a retainer fee of $15 in the case ; that said attorney appeared for them and prevented a default at one time, making an argument thereon, and also appeared for them during the trial; and when the default was again asked, said attorney objected on the ground that the defendant, W. E. Peterson, was a married woman, and argued the objection; whereupon the court took time to consider, and when, afterward, judgment by default was rendered, said attorney duly excepted for the defendants, Petersons, and had the same noted of record, of all which,' he then advised the Petersons by letter. It also appeared that W. E. Peterson was a stockholder to the amount of $2,000, one-half only on each share being paid. It is also shown by the affidavit of W. S. Peterson that the attorney, so appearing for himself and wife, was not employed by them or authorized to appear for them. There is no denial, howevfer, of the receipt of the letter from the attorney, stating what he had done, nor of the fact that they had full knowledge of all that had been done for them, and of the result of the case immediately thereafter.
We proceed now to dispose of the points presented by appellant’s counsel. It is'urged that the original petition did not set out a cause of action; that the amendment set out a different cause of action from the original notice; that the first ruling on the motion for default, denying it, was final and the subsequent default irregular; that judgment by default upon the amended petition, without notice of it to the appellant, was irregular, and that the petition and amendment did not set out a cause of action.
It will be noticed by reference to the foregoing facts that the appellant, W. E. Peterson, was duly served with notice; that she supposed that Sibley & Harbert were appearing for her and defending the action, and that, by the record, it is shown that they did appear for her in terms, by filing their motion to dismiss and their demurrer “ for defendants.” *599So far, then, the defendant had the full and free benefit of the legal services she supposed she was going to have for pay. She is now in no condition to complain that they did not appear for her up to that time. Such appearance and demurrer obviated the necessity of any notice to her of the amendment, and this, even if it be true, that the amendment did embody a cause of action different from that stated in the original notice.
The refusal of the default, at one time, was no estoppel upon the court from granting a default at a subsequent time. There is no pretense but that, under the statute and the rules of the court, the default might properly have been granted when it was, the party having filed a demurrer which had been overruled. And the showing is very conclusive that an attorney did appear for the appellant and resist the default, and notified her, by letter, the very next day, of his efforts and the result. The receipt of this letter is not denied, nor is it in anyway shown that the appellant disapproved or disaffirmed the acts of the attorney, until her property,is sought to be made liable to the judgment; some nine months thereafter. There was due service of notice, the case concerned her separate property, and she might have appeared by an authorized attorney, if she had employed one. The only reason given for not employing one is, that she thought the attorney for her co-defendants was appearing for her. Even slight diligence would have prompted the inqiiiry, at least, whether he was so appearing. In our view of the facts shown, there was no such diligence as will justify us in setting aside the default and judgment.
And, further than this, the appellant has failed to show any meritorious defense to the action. It is true she denies being a member, stockholder, officer or debtor of the company; but there are other affidavits stating that she was a member and’stockholder of the company, and also a debtor to it, atithe'time the judgment was rendered in a greater amount than. th,e:p,laihtiff recovered. Whether the appellant, if her property shall be :taken. to pay the judgment, may not .have her action against the other stockholders and debtors, is a matter upon which we intimate no opinion.
Affirmed.