People v. Mariposa Co. , 39 Cal. 683 ( 1870 )

Rhodes, C. J.,

delivered the opinion of the Court, Wallace, J., Sprague, J., and Temple, J., concurring.

This is an action for the recovery of taxes assessed on the Mariposa estate, for the year 1865. It was held by this Court in Clark v. Willett (35 Cal. 540), that “an attorney’s license was prima facie evidence of his authority to appear for any person whom he professes to represent;” and that position is abundantly sustained by the authorities. He may, however, be compelled by the Court to show his authority to appear for such party; and this may be required of him at the instance of the opposite party as well as of the party for whom he appears. In order to invoke the exercise of such power, the opposite party, when he questions the authority of the attorney, must state facts showing, or tending to show, that the attorney did not possess the authority which he exercised. He must state such facts, or, as some of the cases hold, the grounds and reasons which induced him to believe, that the attorney had no authority to appear; otherwise the prima facie evidence first mentioned—the presumptions arising from his license, and the fact of his appearance-^-will prevail. (McKiernan v. Patride, 4 How. Miss. 333; Ninety-nine Plaintiffs v. Vanderbilt, 1 A. Pr. R. 193; 1 Pars, on Cont. 97.)

The affidavit of the District Attorney only states, that he is informed and believes that the attorney, who represented the defendants on the motion to vacate the judgment, was not authorized to appear for them. There is nothing in the record to help out the affidavit. It will not be presumed, from the fact that the judgment in the action was entered by default, and on an amended complaint, that the defendants in the action were represented by any attorney.

It would be improper, on this appeal, to consider the merits of the motion to vacate the judgment, for the reason that the Court below has not decided it.

Order dismissing the motion reversed, and cause remanded.

Crockett, J., expressed no opinion.