Hamilton v. . Wright ( 1868 )

The general rule, that an appearance by attorney, whether for the plaintiff or the defendant, if there be no collusion, may be recognized by the adverse party as authentic and valid, I deem important to the safe administration of justice, and well founded in the scheme and plan of such administration in England and this country ever since such officers were commissioned to represent litigants in the courts.

Receiving their authority from the court, they are deemed its officers. Their commissions declare them entitled to confidence, and, in a just sense, their license is an assurance, not only of their competency, but of their character and title to confidence.

The direct control of the courts over them as officers, by way of summary discipline and punishment to compel the performance of their duty, or to suspend or degrade them, is retained and exercised as a guaranty of their fidelity. It is no denial of the rule that, where there are special circumstances calling for its relaxation, the courts may and do relieve from its rigid application. The exception arising from such special circumstances strengthens, as well as recognizes, the rule itself.

Hence, when an appearance is entered by an attorney without authority, the inquiry, whether such attorney is of sufficient responsibility to answer for his unauthorized conduct to the party injured thereby, is entertained. And it may be proper always to inquire, whether the injury to the party is irremediable unless such appearance be set aside, and the proceedings founded thereon vacated.

In exercise of their general equitable control over their own judgments, the court may and should consider whether they can relieve the party for whom an unauthorized appearance is made, without undue prejudice to the party who has in good faith relied upon such appearance and the official character of the attorney who appears.

But it would be at variance with the scheme and plan upon which we universally administer the law, if a defendant could be prosecuted by a responsible attorney, in full authority to practice in our courts, and after having successfully and in good faith defended, as the case might be, through all the tribunals of justice, and to final judgment in the court of last resort, be required to submit to an order setting aside the proceedings, and be left to be again prosecuted for the same cause of action, on the mere ground that the plaintiff's attorney had no authority from the plaintiff to bring the action. The law which gives to attorneys their commissions, must be deemed to guarantee to defendants protection against such a result. And, at the same time, the rule should yield to equitable considerations, where they arise, and should permit the courts to give relief when they can thereby prevent irremediable wrong to either party.

And if it be asked, why should the party for whom he appears be left to seek his remedy against the attorney? — why should not the party who has been subjected to an unauthorized litigation pursue that remedy, rather than cast that hazard and burden on one who has done nothing to deserve it? — the answer lies in the suggestion already made, that the law warrants a party in giving faith and confidence to one who, by law, is authorized to hold himself out as a public officer, clothed with power to represent others in the courts. And, besides this, the consequences of the contrary rule would often be altogether disastrous. Evidence would be lost; witnesses die; the statute of limitations bar claims; and death of parties themselves might often happen. In various ways, to set aside proceedings at the end of a protracted litigation would be to work inevitable wrong to the party who had relied upon an appearance.

It may be said that proof of the authority of the attorney to appear and prosecute should be demanded, if the party would be safe. If such demand could in all cases be insisted upon, it would be only one step toward safety. It might often be practically ineffectual. Ex parte evidence of authority might be produced, and yet, if the party might afterward impeach it, the question would again arise, in all its force. Besides, it is not the practice to require attorneys to produce their authority, except in special cases. No doubt there is power in the courts to order it: it has sometimes been done. (Ninety-nine Plaintiffs v. Vanderbilt, 4 Duer, 632.)

When, pending a litigation, the authority of the attorney to appear is denied, and application is made in due season, the court, if probable cause appears, would, in general, protect the party applying. Still, the general rule remains, that a retainer will be presumed; and the adverse party, having no notice or ground of suspicion, may act on that presumption. (3 Merivale, 12; 2 Mylne Keen, 1; 1 Ves. 196; 6 Johns. 297; 9 Paige, 496.) And in general, where there are no circumstances of suspicion, or facts indicating fraud, and no evidence of bad character discrediting the appearance, the courts do not require a respectable and responsible attorney to exhibit his authority to appear. (6 Johns. 34; 5 Duer, 643.)

It is, however, suggested, that, as in ejectment, the defendant is authorized by statute to require the attorney for the plaintiff to produce his authority (2 R.S. 306), this action should be deemed an exception to the general rule, and it be held that the defendant's own laches have caused his misfortune, if it afterward appear that the plaintiff did not authorize the suit. But it is obvious that the statute itself does not furnish complete protection. It only makes the production of apparent written authority, sustained by affidavit, presumptive evidence. And if the authority do not actually exist, the same question will arise in ejectment as in other actions: How far is the plaintiff bound by the appearance of an attorney for him? And, as respects an appearance for a defendant, the statute makes no provision.

I do not think, therefore, that the omission of the defendant to demand the production of authority, where he has nothing to put him on his guard, awaken his suspicion, or to lead him to distrust the good faith of the attorney who prosecutes the action, should affect his right to insist upon his judgment, when it is not claimed that the attorney is not of full and sufficient responsibility to answer to the plaintiff for any costs or other damage he may have sustained.

In Bean v. Mather (1 Daly, 440), the court do no more than exercise their general discretion to open a judgment and let a defendant in to plead under special circumstances in which it was equitable and proper; although it is quite true that observations are made in the opinion of the court in derogation of the justice of the rule I have been considering, and, as I think, overlooking its proper foundation and the policy of its general maintenance.

It is, at least, doubtful whether the Code of Procedure, as amended in 1862, affects the question on either side. It was settled, before the Code was adopted, that a deed of lands held in adverse possession was good against the grantor and his heirs, and against strangers, though void as against the party in possession of the land at the time of its execution; that, being void as to the latter, the grantor could maintain the action to recover the possession, and the grantee could not; but that a recovery in the name of the grantor inured to the benefit of his grantee. (Jackson v. Demont, 9 Johns. 55; Livingston v. Prosetts, 2 Hill, 526; 9 Wend. 516; 15 id. 164; 1 Johns. 159; Williams v. Jackson, 5 id. 489.)

When, therefore, the Code had, in section one hundred and eleven, provided that every action should be brought in the name of the real party in interest, a doubt arose whether an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee, he could, as against the party in possession, show no title; for, as against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because, if he recover, his recovery would inure, not for his own benefit, but for the benefit of the grantee.

The Code was, therefore, amended so as to exclude such a conclusion, by adding to the section the provision that "an action may be maintained, by a grantee of land, in the name of a grantor, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant." The purpose was, I think, to limit the operation of the section, as previously enacted — not to create any new authority, as between the grantor and grantee, for the use of the name of the former by the latter. If, by reason of the giving of the deed, such authority was to be implied, very well; if not, I do not think the Code conferred it.

To the suggestion that the deed was given by the appellants as executors, and such a deed did not warrant an action in the name of the appellants as individuals, it must suffice to say, that the appellants have not seen fit, in their motion papers, to set out the will under which they convey, and the deed itself is apt to convey their own estate in the premises, and does not show that, in giving the deed, they were executing a naked power.

I think the order of the Supreme Court, requiring the defendant to first endeavor to collect the costs from the grantee, Gleason, was all to which the appellants were entitled. The order must be affirmed.