Lisbon v. Holton , 51 N.H. 209 ( 1871 )

Bellows, C. J.

The suit was brought by attorneys of this court in regular standing, of unquestionable respectability, and perfectly able to respond in damages for any unauthorized act. Under such circumstances it has been held that a party for whom such attorney appeared could not avoid a judgment rendered against him by showing that the attorney had no authority to appear, but that his only remedy was against the attorney himself. Bunton v. Lyford, 37 N. H. 512, and cases cited: Smyth v. Balch, 40 N. H. 363.

This, however, is a motion to dismiss the action by the opposite party, on the ground that he ought not to be compelled to litigate a suit not authorized to be brought by the plaintiff who is alone interested.

And there are authorities to the point that a suit will be dismissed on the motion of the defendant, when it is made to appear that it is brought without authority. Manchester Bank v. Fellows, 28 N. H. 307; Davis v. School District, 43 N. H. 381. In that case the objection was to the appearance for the school district as not authorized.

The same doctrine is recognized in Bridgton v. Bennett, 23 Maine 420.

In the two New Hampshire cases of Manchester Bank v. Fellows and Davis v. School District there was no decision disallowing the appearance of counsel, although it was assumed in both that it might properly be done if the want of authority were shown.

It may be suggested, however, that if, in a case like the one before us, a judgment for the defendant was rendered against the plaintiffs, it would bind them, and could not be avoided by showing that the attorneys had no authority to commence the suit. That is clear, on the authority of Bunton v. Lyford and Smyth v. Balch, and cases cited; but the remedy would be by suit against the attorney. And the case of Jackson v. Stewart, 6 Johns. *34, is an authority against the doctrine that a suit will be dismissed on motion of the defendant, and proof that the attorney was not authorized to bring it.

Without, however, undertaking to settle this question, we are of the opinion that however it may be as to the original authority of thev attorneys, there has been by the town a subsequent ratification. Tho committee, acting under color of an express authority derived from a vote of the town at the annual March meeting, employed these attorneys to bring the suit.

They brought it on January 27, 1871, and the writ was served on that day, and was entered in court on the third Tuesday of March, 1871. On the second Tuesday of the same March, at their annual meeting, the town, with a knowledge of the vote authorizing the committee to sue, and with a knowledge by the citizens generally that the suit was pending, appointed S. P. Simonds an agent to carry on the lawsuit with Gale and all other lawsuits pending with the town, and at the same time the selectmen had knowledge of the pendency of this suit.

On the evidence furnished by the case, we must find that the town knew of the vote authorizing the committee to bring this suit, and at the March meeting had notice that the. suit was brought and was pending; and of this the selectmen also had knowledge. The appointment of an agent to carry on all suits with the town then pending necessarily included this suit; and as the town had knowledge of it, and that they had authorized or attempted to authorize the committee to bring the suit, it is fairly to be inferred that they intended to authorize their agent to carry on this suit.

This is an inference of fact which the court on this application may. properly make. And this is strengthened by the circumstance that, with a knowledge that the suit had been brought and was about to be entered, no objection was interposed by the town or the selectmen, notwithstanding they must have been aware that the suit was about to be entered and expense incurred.

This, of itself, goes far towards a ratification of the act of the attorneys.

In principle, it is like witnessing, without objection, the rendering of a service by one man for another, of a character necessarily implying an expectation of compensation.

Here, the town were aware that these attorneys were rendering service of that character, and made rp objection; and from this an assent may fairly be implied.

Taking into view all the circumstances reported, including the important fact that no dissent has ever been expressed, we think that the act of the attorneys in bringing this suit must be regarded as ratified by the town.

It is clear on the authorities that the act of an attorney of this court in regular standing, and able to respond in damages for his conduct in bringing a suit and entering it in court, will be presumed to have been duly authorized, at least until the contrary is shown ; and we think the want of authority is not sufficiently shown in this case.

The exception must therefore

Be overruled.