Sperry v. . Reynolds , 65 N.Y. 179 ( 1875 )

The question in this cause is, whether, in case a summons issuing from a justice of the peace is served by copy, an appearance by some person in his behalf is such presumptive evidence of authority as to give the justice jurisdiction over the case.

The Revised Statutes (vol. 2, p. 228, § 15) provide that where the defendant shall not be found, the summons shall be served by leaving a copy thereof at the defendant's last place of abode, in the presence of some one of the family, of suitable age and discretion, who shall be informed of its contents.

The eighteenth section provides, in this case, that on the return day of the summons, if the defendant shall not have appeared or shown good cause for not appearing, the suit shall be deemed discontinued, unless a warrant, etc., against the defendant be issued on that day; and if so issued, the suit shall be deemed to have been continued thereby.

There was no continuance of the present action, unless there was a sufficient appearance by the defendant. The return of the justice on the appeal showed that the defendant did not appear in person, but that one Silas Crandall appeared for him, and that Crandall did not swear to his authority to appear for the defendant, and did not in any manner prove his authority to appear for the defendant in the action at the time of joining issue. By consent of the plaintiffs and Crandall, professing to act for the defendant, the cause was adjourned from the return day, February 9, 1869, to March ninth. This adjournment, unless it was in fact assented to by the defendant, deprived the justice of jurisdiction over the cause, if he previously had any. (2 R.S., 238, §§ 67-69.) It did not appear that Crandall was an attorney and counselor at law. Under such circumstances can there be any presumption raised that this person was authorized to appear for the defendant, or is it essential to the jurisdiction of the justice that Crandall's authority should have appeared affirmatively?

It must now be deemed to be established as law in this State that a judgment recovered in a court of record cannot be attacked collaterally for want of jurisdiction, though the defendant was not served with process and had no knowledge of the suit, provided that an attorney appeared for him, not having authority. (Brown v. Nichols, 42 N.Y., 26.) This conclusion was arrived at on the authority of Denton v. Noyes (6 Johns., 296), by a bare majority of the court. The doctrine is in opposition to the ruling of the Supreme Court of the United States in Shelton v.Tiffin (6 How. [U.S.], 163). The decision of the court inBrown v. Nichols was not placed solely on the law of agency, but partly on grounds of public policy. It was, no doubt, as far as judgments concerning real property were concerned, rested largely upon the ground that if the judgment were made a nullity, it would be a great hardship to compel persons in tracing their titles through the records of the courts to inquire, in every instance where a judgment had been entered, into the particular authority which the attorney had to appear in such actions. (See p. 32.)

It is a very different question, however, whether a defendant wholly without fault ought not to be relieved in the same action in which the unauthorized appearance is had, by motion or other appropriate proceedings. No sound argument of public policy can be urged against such relief, where the rights of purchasers in good faith are not affected. This power of the courts should be exercised with much liberality, and with a desire to prevent the abuse or perversion of legal process. It is no good answer in such a case to say that the party injured by the unauthorized appearance has a legal remedy against the attorney. This would be, in many instances, but a barren remedy. The pecuniary responsibility of the attorney is a matter of collateral inquiry, and cannot be properly considered by the court. This point was carefully examined in Bayley v.Buckland (1 Exch., 1). In that case the correct rule was held to be, that if the defendant has been served with process, and an attorney without authority appears for him, the court must proceed as if the attorney really had authority, because in that case the defendant having knowledge of his suit being commenced, is guilty of an omission in not appearing and making defence by his attorney. In other words, the plaintiff is without blame and the defendant is guilty of negligence. Even in that case, if the attorney were not solvent the defendant would be relieved on equitable terms. On the other hand, if the plaintiff, without serving the defendant, accepts the appearance of an unauthorized attorney for the defendant, he is not wholly free from the imputation of negligence. The defendant is wholly free from blame, and the plaintiff not so. On this last branch of the rule the court proceeded to set aside the judgment, execution and all proceedings subsequent to the summons, that having been personally served. See, to the same effect, Coxe v. Nicholls (2 Yeates, 546); Compher v. Anawalt (2 Watts, 490); Holker v. Parker (7 Cranch, 436); Critchfield v. Porter (3 Ohio, 518).

This want of authority may not only be raised by motion, but also by writ of error. The technical ground on which that goes is, that to be strictly regular a warrant of attorney must be filed and become a part of the record. If the attorney were in fact authorized that might be filed nunc pro tunc, and the want of it would be cured after verdict by the statutes of jeofails. If he was wholly unauthorized he of course could not, on proper proceedings for the reversal of the judgment, file any such warrant, and the judgment must accordingly be reversed. (See Tidd's Practice.) Denton v.Noyes (6 J.R., 296) is, perhaps, opposed to these views. It has, however, been severely criticised as to the extent to which the doctrine there was carried. I see no good reason for following it. So far as it is adverse to a review of the proceedings in the same action, whether by motion or writ of error, see remarks of an able writer (Judge DILLON), in 5 American Law Register (N.S.), 392; Meacham v. Dudley (6 Wend., 514); Williams v. Van Valkenburgh (16 How. Pr., 144);Ellsworth v. Campbell (31 Barb., 134); Allen v. Stone (10 id., 547); Shelton v. Tiffin (6 How. [U.S.], 163); Price v.Ward (1 Dutcher, 225; 25 N.J.L.R.).

The ruling in the case of Denton v. Noyes should not, in any event, be applied in favor of the present plaintiff. That case is expressly put upon the ground that the party appearing was a licensed attorney, and that he was an officer of the court, and upon the great public inconvenience of holding the plaintiff bound to inquire into the attorney's authority. It was a rule intended for the government of proceedings in a court of record, and applied to officers over whom that tribunal has summary authority. There are no reasons in favor of extending such a rule to the inferior courts where attorneys at law do not necessarily appear for a client, but where any person of sufficient judgment and discretion, without an attorney's license, may represent either of the parties. In such a case, where a summons is served by copy, the authority of the attorney should be made to appear affirmatively in some appropriate manner. Mr. Parsons, in his work on contracts, volume 1, pages 113, 114, makes this distinction, in substance, between the appearance of an attorney at law, and one in fact, holding in the one case that the authority may be presumed, and in the other that it must be proved, if required.

If these views are correct, the defendant was not bound to object, nor to attend on the return day, nor to take any steps whatever. He was only under such an obligation in case of personal service. The question then recurs, can Crandall, by his own unauthorized act, put the defendant in a position where he is bound to object? I think not. The case must be governed by the usual rules of agency. Nothing is better settled than that a person cannot, by his own acts, make himself an agent. The true inquiry always is, what has the principal done to authorize the agent's acts? It is, however, said that the question is not before the court, first, because it is not stated in the notice of appeal as a ground of error that Crandall appeared without authority; and, second, that the notice of appeal refers to errors of fact to be established by affidavits to be hereafter served, and no such affidavits were served.

These objections are untenable. This was a question of law. If the proof of the authority must appear affirmatively, the justice had no jurisdiction. This was expressly stated in the notice as a ground of appeal. It was wholly unnecessary to establish any errors in fact; and the notice of appeal, in that aspect, simply contained superfluous matters.

This case is reviewable by this court, as the error is apparent on the face of the proceedings. A motion for a new trial could, of course, not be made before the justice. The error is subject to correction at every stage of the appeal

These conclusions are not affected by the provisions of 2 Revised Statutes, 233, section 45. That section provides that "the authority to appear by attorney may be written or verbal, and shall in all cases be proved, either by the attorney himself or other competent testimony, unless admitted by the opposite party; and the justice shall not permit any person to appear for another without such proof or admission." This clause, from its terms, was manifestly designed, in the main, to protect the opposite party to the action from unauthorized appearances. A waiver by that party cannot affect the rights of the person for whom such an appearance is made. On general principles of law, the court gained no jurisdiction over the defendant, except from a personal service of the summons, or from his appearance. This appearance must be the defendant's own act, and the statute above cited was not designed to affect that rule. Its general intent rather is to protect the rights of an opposing party in all cases, whether the court has jurisdiction or not; and to give him information whether the opposite party is legally present, so as to justify adjournments and other steps in the cause whose validity may depend on the presence or assent of a party.

The judgment of the court below should be reversed, with costs.