Bunton v. Lyford

37 N.H. 512 | N.H. | 1859

Perley, C. J.

The complainant does not seek to set aside the judgment for partition. In that he has had no interest since his conveyance to Dunn, on the 30th of April, 1853, more than three years before the judgment was rendered. He prays for an injunction against execution of the judgment for costs, and against the negotiation and collection of the note which he gave for the costs. There is no suggestion of any fraud , or misconduct in the defendant Lyford, nor of any collusion between him and the attorney who appeared for the complainant in the petition for partition; nor that the gentleman who appeared for him was not a regular attorney of the court; or that he was not and is not of sufficient ability to answer for any damage that the complainant may have suffered from an unauthorized appearance in his name.

In our practice no written warrant is necessary to authorize an appearance by a regular attorney of the court, and till the contrary appears it will be presumed that such an attorney has due authority for his appearance. Bank v. Tilton, 28 N. H. (8 Foster) 302. Such being the prac-' tice, the plaintiff has a right to rely on the presumption that an appearance for the defendant, by an attorney of the court, is made with sufficient authority; and unless there were something in the circumstances of the case to raise a suspicion that the appearance was unauthorized, it would justly be regarded as a troublesome and captious course to call for proof of the attorney’s authority. In this case the attorney was in regular practice ; the persons whose names he entered as defendants were in fact owners or claimants of undivided shares in the land, and the plaintiff had no reason, that we can perceive, to suspect that the attorney appeared without authority.

In such case, the attorney being in regular practice and perfectly responsible, the judgment must stand, and the redress of the defendant, if he has suffered from an unauthorized appearance in his name, must be sought in some proceeding against the attorney. Jose v. Mills, 6 Mod. 14; Stephens v. Squire, 5 Mod. 205; Salkeld, anon., 86, 88; Jackson v. Stewart, 6 Johns. 34; Denton v. Noyes, 6 Johns. 300; Reed v. Pratt, 2 Hill 66 ; Smith v. Bowditch, 7 Pick. 138 ; Cyphert v. McLane, 22 Penn. 195; Kent v. Ricards, 2 Md. Ch. Dec. 392.

The grounds and reasons of this rule are fully explained in Denton v. Noyes.

Bill dismissed, with costs.