17 Ala. 701 | Ala. | 1850
>1. It is insisted on the part of the plaintiffs in error, that the record in this case shows no suit or other proceeding pending in the Circuit Court, on which a judgment could be rendered against them. We do not think this objection is sustained by the record. It is true the proceedings were commenced in the Circuit Court of the United States, holden at Mobile, but the record shows that, by consent, the cause was transfered to the Circuit Court, where the judgment was rendered. This is not only shown by a recital in the judgment entry, but it sufficiently appears by the agreement of the counsel refering the cause to arbitrators, and an agreement, signed by the attornies of the defendants below, extending the time for the arbitrators to make their award, which agreements are made parts of the record, as appears by the judgment entry. This court is constantly called upon to sustain judgments upon the presumed verity of recitals in judgment entries. — Barney v. Bush, 9 Ala. 345; Ib. 368; Spence v. Rutledge, 11 ib. 590; 15 ib. 841; 16 ib. 140; Ib. 695. The case of Saunders v. Morse, 3 How. (Miss.) Rep. 101, cited by the counsel, is not in point. There the jurisdiction of the court, to which it was alleged the venue had been changed, was attempted to be sustained by the certificate of the clerk that the cause had been transfered by change of venue. It is clear that such certificate formed no part of the record, and could not be looked to.— Such is the uniform practice.
2. The cause then being properly before the Circuit Court of Mobile, we are unable to perceive any error in the record.
Mr. Russell, in his treatise on the Powers and Duties of Arbitrators, page 32, says, “Attornies and solicitors are agents who are clothed with peculiar powers of affecting their clients’ interests. Where a person has given an attorney any general authority to act for"him in .legal proceedings, the courts have always been inclined to hold him bound by his ¿tíorney’s acts, and yield with reluctance to any complaint that the attorney has acted beyond or contrary to the authority, given him, in consenting to a reference.” It seems to be well settled in England, that attornies, engaged, in the management of a cause, have power to submit it to arbitration — (Watson on Arbitration, &c.. 79; Bacon’s Abr. tit. Arbitrament,. &c. c.) — where it is said no special authority is required for that purpose. The American authorities are not altogether so uniform, but the decided weight of authority is in favor of the power. — See Denton v. Noyes, 6 Johns. Rep., (per Kent, C. J.,) 300; 1 Dall. 164; Holker et al. v. Parker, 7 Cranch, 486; 1 Monr. 377;. 16 Mass. Rep. 896 — : see the English.cases cited by Russel & Watson, supra. We think the better opinion is, that attornies may submit matters in litigation in the cause, in which they are engaged, to arbitration, .and consent of record that the awavd may be made the judgment of the court, as in this case. It was early settled by our predecessors, that an attorney may suffer judgment by confession, without exhibiting any warrant, if he appear in the cause. — Hill v. Lambert et al. (Minor’s) Ala. R. 91; lb. 19; lb. 125. And the appearance of counsel for a party has uniformly been held to dispense with service of process on the party himself, and
Our conclusion is, that the judgment of the Circuit Court must! be affirmed.