Swartz ex rel. Stuart v. D. S. Morgan & Co. , 163 Pa. 195 ( 1894 )

Opinion by

Mr. Justice Mitchell,

The petition of the defendants to have the judgment struck off as to them, avers that they had no knowledge of the feuit, and the appearance of Swartz for them ivas unauthorized; that they had a good defence, based on the fact that they did not execute the bond on which judgment was obtained. The testimony of defendants’ secretary, taken on the rule, shows that these are meant to be technical averments, and are only true in the letter.

An attorney employed to bring suit, has authority to take all the steps necessary in the regular course of litigation. Thus it has- been held that he may enter an amicable action, Cook v. Gilbert, 8 S. & S. 567; he may agree to the reinstatement of an action against his client after it has been nonsuited, Reinholdt v. Alberti, 1 Bin. 469; and he may refer it to arbitrators with an agreement that their award shall be final, Wilson v. Young, 9 Pa. 101. In the last case it was said that “in Pennsylvania the authority of an attorney is more extensive than in other countries; and indeed it would be difficult to point out any matter or thing in the legitimate conduct of a suit to judgment which he may not do.” And if he assumes expense or liability for his client he is entitled to be made whole by anjr regular means. Thus in McDaniels v. Cutler, 3 Brews. 57, an attorney having issued an execution was met by a claim of a third party on the goods, and thereupon, without any express authority from his client, indemnified the sheriff and the execution proceeded. Being then sued for trespass, he sent a demand to his client for indemnity, to which no'reply was made, and a bill being subsequently filed by the client against him for an account, this court held that he was entitled to be reimbursed his expenses in defending the trespass.

In the present case, Mr. Stuart having obtained a judgment in favor of Morgan & Co. against Neidig, and issued execution thereon, was asked by the constable for indemnity. It has been held that an attorney for a non-resident client has implied authority to give such a bond in his client’s name: Clark v. Randall, 9 Wis. 135; Schoregge v. Gordon, 29 Minn. 367. It is not necessary for us to go so far, or to consider the point, as Stuart was expressly authorized by. Correll to give the indemnity on behalf of Morgan & Co. This raises the chief question in the case, the authority of Correll to act for Morgan & Co. in the matter. The depositions show that he called himself “ general agent,” with their authority, for they furnished him bill heads in which he is so described. His apparent authority therefore extended to the management of all their business within the district to which he ivas assigned. But without entering upon that question he had authority in fact to make collections both of cash'and of notes, from the local agents, and from purchasers of machines. The only restrictions the secretary of Morgan & Co. mentions, are that Correll’s collections were to be sent as fast as made to the home office, and he was not to keep a bank account with Morgan & Co.’s money. All the notes, the secretary says, were made in the name of Morgan. & Co. In collecting them Correll necessarily had to use Morgan & Co.’s name, and had their authority to take all necessary and usual steps for the purpose. In retaining Mr. Stuart therefore to collect the claim againt Neidig, Correll was within his actual authority, and it extended to directing him. to give an indemnity bond to'the constable in furtherance of the execution, on which Morgan & Co. should be liable. Being given by direction of their agent with their authority in fact, Morgan & Co. were as much bound by it as if they had executed it themselves. Whether they knew it was given or not was immaterial. They knew that Neidig’s account was in arrear and unpaid, and afterwards that it had been paid, that their agent was attending to the collection, and that he sent them the money after deducting the fees of Mr. Stuart and Mr. Chamberlain for collection. If they did not choose to inquire what the deductions were for, or by what'steps their agent had finally got the money, their ignorance was their own fault.

There being therefore no defence shown on the merits, to the liability of defendants on the indemnity bond, we have further to consider whether there was any irregularity in the mode of entering the judgment. Correll had notice of the suit, and his reply to Stuart, “ Morgan & Co. are square people, and we will take care of you,” shows that he knew the ultimate liability of his principals'to save the bondsmen harmless, and acquiesced in what Stuart was, doing in the action. Stuart of course had the right to appear for himself and his co-surety, and the notice to Correll, and his conduct on receiving it are convincing evidence of his consent to Stuart’s acting for Morgan & Co. -also. That Stuart, for professional reasons, entirely proper, preferred to have the appearance, in a case to which he was a party, entered in the name of another attorney, is of no importance at all. There was no delegation by him of discretion or of authority, he conducted the case himself, and that he did so in the name of Mr. Swartz was a difference of form, not of substance.

There was no sufficient ground .for opening the judgment. It was regular on its face, and the evidence shows no defence to it on the merits.

Order opening judgment reversed and rule discharged.

Morgan's appeal.

Opinion by

Mr. Justice Mitchell,

July 12, 1894:

This judgment being regular on its face, and the objection that the appearance for defendants was unauthorized, not being admitted, the judgment could not be struck off, but could only be opened, and the disputed fact sent to a jury. But for reasons expressed in the opinion filed herewith, in the appeal by plaintiff, from the same order, it is not a case even for opening the judgment.

Appeal dismissed.