Dixey v. Pollock

| Cal. | Jul 1, 1857

Burnett, J., delivered the opinion of the Court—-Terry, C. J., concurring. .

Motion by plaintiff, requiring the sheriff to pay over to him the proceeds of certain goods attached by the sheriff under three separate writs, the last of which was that of plaintiff.

In the case of R. H. Adams v. D. H. Pollock, the complaint was a printed blank, and the blanks were filled up by the clerk of the Court at the.request of the plaintiff,'but no name was subscribed^ the end of the complaint until the next day, and after the attachment of Dixey was duly levied upon the same goods. It was then signed by the clerk, in this way, “ R. M. Adams, plaintiff's attorney.-” It does not appear, with certainty, whether the blanks in the complaint were filled up and the name signed in the presence of Adams or not. It is most probable, from the affidavits, that the blanks were filled up in his presence, and the name subscribed in his absence.

Under our system of practice, an action is commenced by the filing of a complaint, and every pleading must be subscribed by the party or his attorney. It is insisted by the plaintiff that the complaint in the case of Adams was not subscribed, and was, therefore, void, and the attachment could not issue.

It has been held that a note written by a party beginning, “I, A B, promise to pay,” was good, though no name was written under it. So it has been held that if a party request another in his presence to write his name for him it is sufficient. In this case, we think the complaint was not void. The conduct of the clerk in filling the blank was not correct; but still it was a mere irregularity. And it is well settled that a stranger cannot interfere upon the ground of irregularity. When the contest is between creditors, all the equities are in favor of the most diligent. The subsequent execution or attachment-creditor can claim no equitable relief. If the proceedings of the prior creditor are not void, but voidable, the defendant can alone object. 9 Miss. R., 397; 2 Bailey, 214.

In the case of John Pollock v. D. H. Pollock, the complaint was subscribed, “R. H. Adams, plaintiff’s attorney.” In this case, the blanks were also filled up by the clerk at the request of Adams, who, it appears, was not a licensed attorney, but was the attorney in fact of John Pollock. This case differs very materially from the case of Adams v. Pollock. Adams, as the attorney in fact of John Pollock, had no authority to conduct the proceedings, as he was not an attorney at law. He could, no doubt, have employed counsel to bring the suit; but it certainly was not competent for him to act as attorney at law for John Pollock. The power given him by the latter certainly did not contemplate any such thing. The complaint was drawn and filed by a party who had no authority to do so, and was not subscribed, either by the plaintiff or by his attorney, and the suit must be considered as having been instituted by an entire stranger to John Pollock, and wholly without authority, and, therefore, void.

It is objected by the counsel of the sheriff that the remedy of plaintiff, if any, is by action, and not by motion. This, we think, is not correct. 8 How. Pr., 77" court="N.Y. Sup. Ct." date_filed="1852-12-15" href="https://app.midpage.ai/document/learned-v-vandenburgh-5468111?utm_source=webapp" opinion_id="5468111">8 How. Pr. Rep., 77.

It is also objected, on the part of the sheriff, that Adams and John Pollock were not served with notice of the motion. This was not necessary. If the sheriff wished to make the decision of the Court binding against the other attachment-creditors, he should have given them notice.

Our conclusion is, that the proceeds should be first applied to the execution in the case of Adams, and then to the debt of the plaintiff, Dixey, leaving John Pollock to his remedy, if any, against his agent.

Judgment reversed, cause remanded, and the Court below will make an order in conformity with this opinion.