Bank of Middletown v. Huntington ( 1862 )

By the Court.— Barnard, J.

—The judgment-roll shows that on the 8th day of April, 1856, Jonathan Robinson, one of the defendants, swore to an affidavit of defence, stating therein that defendants have a just defence to $33 of plaintiff’s claim ; and also shows that on the 9th of April, Mr. Woods pleads non assumpsit and payment; that a replication was filed, and the issue tried, and a verdict rendered for plaintiffs. The judgment-record also shows, that in the docket opposite the plaintiff’s name is the word “ Canda,” and opposite the defendants’ names the words “ D. W. Woods.”

The mode of appearance by attorney in Pennsylvania (where this judgment was recorded), is by the attorney writing his name on the docket opposite to the names of the parties for whom he appears.

We are bound to presume that in the State of Pennsylvania, as well as in the State of ¡New York, no one can appear and plead a cause on behalf of a party to an action except an attorney duly admitted and authorized to practise in the court.

Mr. Woods .not being a party to the action, and having pleaded to it, it follows that he must be regarded as such attorney.

It must also be presumed, that when an attorney pleads to the whole complaint, without it being stated in the record for what particular defendant he pleads, that he pleads for the whole.

An attorney appearing for all the defendants, must be deemed, frima faoie at least, to have done so by authority of all the defendants. The judgment having been rendered after appearance on behalf of all the parties defendant by an attorney, it is# valid for all purposes.

The questions as to whether the attorney had authority to appear or not, and as to whether if he had not such authority that matter is admissible in this action, do not arise on this appeal.

It is sufficient ground for reversal of this judgment, that the record shows an appearance on behalf of all the defendants by attorney.

Judgment reversed, and a new trial ordered. Costs to abide event.

Clerke, P. J.—It is settled in Pennsylvania (Scott a. Israel, 2 Binn., 145), where there are two or more defendants, and an attorney enters his name on the docket opposite the names of the defendants, this is a good appearance for all, though one of the defendants is not summoned. This is identical with the case before us, with the exception that the name of D. W. Woods is not followed by the word “ attorneybut, for the reasons mentioned in the foregoing opinion, this omission does not vitiate the effect of Mr. Woods’ name in the docket. If he appeared without authority, the remedy is by an application to the court of Pennsylvania to open the judgment, as by an action against the attorney.

The judgment should be reversed, and a new trial ordered. Costs to abide event.

Sutherland, J., concurred.