2 Ark. 356 | Ark. | 1840
delivered the opinion of the Court:
The question to be decided is, whether the rule upon Linton, to produce his authority to prosecute the suit was authorized by law, and if so, whether the authority produced by him, was legally sufficient for that purpose?, In the case of Tally vs. Reynolds, 1 Ark. Rep. 99, this court recognized the principle that every attorney regularly licensed and duly admitted to practice in the courts of this State, possesses by virtue of his license and admission, a general right to appear, for any of the suitors in the courts where he is admitted to practice, who may retain him for that purpose: but his license is not of itself an authority to appear as the representative of any particular person, until he is in /act employed or retained for such person. Yet bis authority to represent any suitor on whose behalf he may appear cannot be legally questioned, until facts or circumstances are shown by affidavit, or otherwise, sufficient to raise a legal presumption that he is not legally authorized to appear for the party be assumes to represent. Whenever this appears affirmatively the attorney may be legally required to produce his authority to appear for, or in the place of such party, otherwise he cannot. But the facts and circumstances disclosed by the record before us, do not, in our opinion, warrant a presumption that the attorney, Linton, had no legal authority to appear for the plaintiff, and prosecute this suit; because, it appears affirmatively from the record, that this suit is prosecuted for the use of Houston, and that the “plaintiff produced and filed his writing obligatory” in the Justice’s Court, as he was bound by law to do, which facts warrants the legal presumption that Houston is the bona Jide holder of the obligation, and equitably entitled to the avails thereof, notwithstanding it does not appear to have been endorsed and assigned to him by the payee, and this presumption is not repelled by any testimony, proving, or in anywise conducing to prove, that he obtained the possession thereof fraudulently or unlawfully; and therefore the rule upon the attorney to produce his authority to prosecute the suit was wholly unauthorized by law; and inasmuch as the legal presumption that Houston is the bona fide holder of the obligation in suit, is not in any manner impugned by any thing appearing in the record, or even questioned by the defendant, although the statement upon which the rule against the attorney is based, is set out entire in the record, consequently his right to sue in the name of Cartwell, the payee, must be conceded; and upon this state of the case, the allegation of the attorney that he was retained by and appearing on behalf of Houston, when admitted to be true, as it appears to have been on his motion to discharge the rule, showed a sufficient legal authority for his appearance in and prosecution of the suit, in the name of Cartweli, and thereupon the rule against him ought to have been discharged, and he suffered to proceed in the case according to law, as the attorney for the plaintiff. We are therefore of the opinion that the court erred in entering the rule against the attorney representing the plaintiff requiring him to discharge said rule upon the authority shown by him, and also in dismissing the suit, as upon the ground of a failure on his part to produce any legal authority to appear and prosecute the same for the plaintiff; wherefore the judgment of the Circuit Court is reversed.