Munnikuyson's Adm'x. v. Dorsett's Adm'x. , 2 H. & G. 374 ( 1828 )

Dorsey, J.

delivered the opinion of the court. The circumstances detailed in the depositions filed in this case, were not a sufficient warrant to the court below, to strike out the judgment against the appellee. The scire facias against Fielder Dorsett’s administratrix was regularly issued, to which a voluntary appearance for the defendant, was entered by Archibald Han Horn, an attorney of Princc-Qeorge’s county court, and a judgment by default was rendered against her by reason, as stated in the argument, of the death of Han Horn before the judgment term; and it is, alleged, no rule was laid on the defendant to employ new counsel. The want of such a rule does not vitiate the judgment; the party has no legal right -to demand it; its imposition is not the offspring of any mandate of the law, but of the courtesy of the bar, which is encouraged by the court, as tending to subserve the purposes of justice. The appearance of an attorney, without proof of an authority derived from a defendant, does not per se invalídate a judgment. If loss or injury be sustained thereby, the attorney must answer it in a civil action by the party injured. The sufficiency of his estate to-do so, was admitted in the argument of the case before us; and there is no insinuation of fraud or covin.

But conceding that the circumstances under which this judgment was rendered, afford an ample justification for its being stricken out, a conclusive objection, to its being done, is the statement in the affidavit of the appellee, that she had united in an application for an injunction, (and ex necessitate ret for relief,) to the Prince-George,s county court, sitting as a court of equity, with Mackall 8: Cox, one of the sureties in her administration bond, against whom a judgment and execution had been obtained, founded on the fiat and proceedings against her., Whether this proceeding in equity be still pending or finally determined against the complainants, does not appear. But in either event it is an, insuperable barrier to the granting of that summary relief which she has successfully sought at the hands of the county court. The grievance complained of is one, against which the county court, on. its equity bench, is competent, not to say peculiarly fitted, to relieve. The party has elected the tribunal from which she seeks redress; and there she should be left to .obtain it, and not take two chances for relief — -involving the appellant in a double series oflitigation, and possibly obtaining, as it. were, inconsistent, and contradictory decisions upon the same subject.

Judgments at law are not lightly to be interfered wirh; and it must be a case infinitely stronger than the present to induce this court to sanction the striking out of a judgment of almost eight years standing, in virtue pf which too, in due course of law, another judgment hath been obtained by confession, and execution levied thereunder.

This court do not concur with the suggestion, that the: appeal must be dismissed, because the court below, (as is contended,) have given no final judgment in the cause. By ordering the judgment to be stricken out, and giving the plaintiff no day in court, there is an end of the suit; and the parties in that proceeding have no further opportunity of litigating their Tights. Even if the county court were right in striking out-the judgment, (which we cannot admit,) they were bound to hare ordered regular continuances of the cause to have been, entered on the docket, so that the matters in dispute might have been brought fairly to trial, as directed by the act of 1787, eh. 9,5. 6. Their failure to do this works a discontinuance of the action, and thereby inflicts an injury on the plaintiff, to redress which this appeal properly lies.

But we must not be understood as predicating our reversal upon this reason; but upon the broad ground, that under the circumstances of this ca.se, the county court were not authorised to strike out the judgment on the scire facias/ and that the fat must remain in full force, unless relief against it be granted in equity.

®RDER REVERSED.