Commercial Bank v. Foltz , 43 N.Y.S. 985 ( 1897 )

Ward, J.:

Section 65 of the Code of Civil Procedure provides as follows: “ If an attorney dies, is removed or suspended, or otherwise becomes disabled to act, at any time before judgment in an action, no further proceedings shall be taken in the action, against the party for whom he appeared, until thirty days after notice to appoint another attorney has been given to that party, either personally or in such other manner as the court directs.”

The command of this statute is absolute. There shall be no further proceedings in the action as against the party for whom the attorney has appeared until the thirty days’ notice to appoint another attorney has been given. This provision of the Code is founded upon a wise policy. A pending action needs constant attention ; every step in it may be attended with important consequences to a party to it. The. law provides an officer of the court to guard the interests of a litigant from the beginning to the end of the litigation ; and if by a misfortune the party loses the protection of that officer the proceedings stop at that moment, and remain suspended until in the ajipointed way another attorney is substituted or the proper notice given by the opposing party to appoint one has been served.

In this case it is apparent that very important steps were taken in the action.. A decision was rendered, a judgment ¡lerfected, costs taxed, property sold in pursuance of that judgment, and all done as against the appellant Fultz, when he nod no attorney to take such proceedings as were necessary for his protection and when no notice had heen given by the plaintiff under the statute to appoint one. The case, therefore, would seem to come squarely within the condemnation of the section of the Code cited. But the learned counsel for the respondent insists that this section of the Code has reference only to such proceedings in an action concerning which it is necessary to give notice and that no- proceeding occurred before the entry of final judgment that required notice; tliat it was the duty . of the trial judge under the Code to make and file his decision; that •it was the duty of the clerk to enter judgment.

It is true that it is the duty of the judge to make and file his decision, but, when this decision is filed, section 1238 of the Code providés that: “ The judgment roll must be prepared and furnished to the clerk by the attorney for the party at whose instance the final judgment is entered, except that the clerk must attach thereto the necessary original papers on file, but the clerk may at his option make up the entire judgment roll.”

In Knapp v. Roche (82 N. Y. 366) it was held that the duty of preparing such judgment roll is imposed upon the attorney for the party at whose instance the final judgment is entered under this section of the Code, and that an order was proper directing the plaintiff to enter the judgment and file the roll.

In fact, in this case, the record shows that the judgment was entered upon .the motion of the plaintiff’s attorney.

Sections 3263 and 3264 of the Code of Civil Procedure provide that costs may be taxed upon notice to the attorney of each adverse party and fixes the time of notice; but where the costs are taxed without notice, notice of retaxation must immediately thereafter be given, so that, before judgment was complete, notice must have been given to the appellant through his attorney. The service of notice upon him for retaxation was unauthorized.

But the prohibition of section 65 is not confined to proceedings requiring notice. It extends to all proceedings that may be taken by the adverse party, whether upon notice or otherwise.

The respondent’s counsel also contends that, as to proceedings after judgment, Dorthy’s authority had ceased and cites Moore v. Taylor (40 Hun, 56) and Lusk v. Hastings (1 Hill, 656).

It is true that in some of the cases the general proposition is asserted that the authority of the attorney terminates with the judgment, but it is certain that this statement is too broad and needs many qualifications.

The attorney may stipulate to postpone an execution that had been issued upon a fraudulent judgment. (Read v. French, 28 N. Y. 285.)

If employed to collect a claim he has authority by virtue of his original retainer, after judgment, to institute supplementary proceedings. (Ward v. Roy, 69 N. Y. 96.)

Upon a judgment being paid to him as attorney by a defendant held upon a body execution, the attorney can authorize the sheriff to discharge the defendant. (Davis v. Bowe, 118 N. Y. 55.)

He may make and serve a notice of appeal from a judgment against his client, and «no other attorney can issue such notice until properly substituted in the place of the attorney of record. (Schuler v. Maxwell, 38 Hun, 210, and cases cited; opinion of Hardin, J., in Miller v. Shall, 67 Barb. 146.)

■ An appeal must be taken by serving upon the attorney for the adverse party the notice of appeal. (Code Civ. Proc. § 1300.)

The power of an attorney to satisfy judgments extends for two years after judgment has been entered, even as against the consent of the client. (Code Civ. Proc. § 1260; Woodford v. Rasbach, 6 Civ. Proc. Rep. 321, and cases cited.)

Many other instances might be referred to showing the continuation of the attorney’s authority after judgment.

In Lusk v. Hastings (supra) Oowen, J., while asserting the general rule, finds many exceptions to the proposition that the attorney’s authority terminates with the judgment, and he says : “ It should also be noticed that the law prolongs the power for such time after judgment as may be necessary to take care of certain steps which grow out of the main proceeding.”

We apprehend the true rule to be that, for all purposes of collecting the judgment, or to vacate, modify or reverse it, the power of the attorney of record continues with the presumed assent of his client until some affirmative steps are taken by the client to dismiss him from the case, or some of the causes intervene specified in section 65 of the Code.

In Hickox v. Weaver (15 Hun, 375) it was held that, where under section 65 notice to appoint another attorney is served upon the party whose attorney had died, all proceedings are stayed for thirty days.

In Forbes v. Muxlow (18 Civ. Proc. Rep. 239) it was held that where, during the pendency of an action, the attorney for the defendant died, all proceedings ón the part of the plaintiff were stayed until thirty days after notice had been given to appoint an attorney, and that an inquest which had been taken and a judgment entered by the plaintiff by default in the meantime should be set aside.

Upon the disbarment of Mr. Dorthy on July 30, 1896, by force of section 65 of the Code of Civil Procedure, all proceedings on the part of the plaintiff in this action were stayed, and the entry of judgment by the plaintiff’s attorneys and the subsequent proceedings were unauthorized and irregular.

The order appealed from should be reversed and the judgment and sale vacated, with ten dollars costs and the disbursements of this appeal.

All concurred; except Follett, J., dissenting.

Order reversed, with ten dollars costs and disbursements, and motion granted; with ten dollars costs.