Starr v. . Hall , 87 N.C. 381 ( 1882 )

The authorities, with reference to the right of an attorney to bind his client by accepting service of process for him, leave no room to doubt the correctness of his Honor's ruling in this case.

An attorney cannot, under his general authority, accept service for his client of the original process by which the action is begun. I Wait's Actions, 439; Bagley v. Barkland, 1 Exch., (W. H. and G.) 1; Masterson v.LeClaire, 4 Minn. 108.

The principles upon which these authorities rest, is, that it is no part of the duty of an attorney, not within the scope of his authority, to admit of service for his client, of the original process by which the jurisdiction of the court over the person of the client is first established, for until that be done, the relation of client and attorney cannot begin; nor can it be created by the act of the attorney alone. To exercise such a power would be to act rather as an agent, or attorney in fact, than as an attorney of the court, and to give effect to it, therefore, there must needs by a special authority for it; and as the law is plain, that the summons must be personally served upon the defendant, if a party will take upon himself the responsibility of discarding the mode prescribed by law, and admit of a waiver of such (384) service by an attorney, he is bound to see to it, that the latter has the authority to act, or else, (the inconvenience must be on himself.

After judgment, even in the case of an unauthorized appearance for the defendant, the courts will use some caution in giving relief, and will consider how far they can do so without doing prejudice to the plaintiff, who may have (trusted to the official character of the attorney and thereby been misled. But when pending the litigation the authority of the attorney is denied, they more readily grant relief if asked in due season. Weeks on Attos., Sec. 197.

We are bound to accept the facts as found in the a court below, and taking it to be true that Mr. Carter, however he may have constructed his right to act for the defendant, by reason of his general retainer as her counsel, had really no authority to bind her, or to enter an appearance for her; and that she remained ignorant of his action in the matter, and even of the pendency of the suit, until the day of her application to be relieved, there can be no question as to the duty of the court to protect her, and therefore the judgment is affirmed. Let this be certified.

No error. Affirmed.

Cited: Warlick v. Reynolds, 151 N.C. 611.