Farrington v. Wright

1 Minn. 241 | Minn. | 1856

By the Court

Chateield, J.

The order requiring the Attorney for the Plaintiff below to file proof of his authority was properly disregarded by the District Court. The order was wholly void. It was not authorized by the Statute, which regulates the practice and proceedings in such cases, and supersedes the old practice of filing warrants of Attorney. The Statute authorizes an order to require the Attorney to produce or prove the authority under which he appears. The order in this case required, the Attorney for the Plaintiff to file the evidence of his authority, which is another and different thing. The Statute authorizes an order staying all proceedings by an Attorney on behalf of the party until he does produce or prove his authority. The order in this case stayed all proceedings on the part of the Plaintiff, by the same or any other Attorney, until, &c., a stay not authorized for that cause. Had the order been valid for any purpose, the record does not show that it was so served as to make it effectual.

The Plaintiff had by the practice, the right to take his Judgment notwithstanding the answer, pursuant to his notice of motion therefor, the Defendant not appearing. A party noticing a motion, may, if his opponent make default, take his order, but he takes it at his peril, and must see to it, that his proceedings are regular, and that he takes no niore than he is entitled to by the record or the practice. If the practice or record will not sustain the order which he thus takes, it is subject to correction, and if, as in this case, the order be for final judgment, and not sustained by the record, the error may be corrected in this Court upon Writ of Error. In this case I think the judgment is sustained by the record.

The cause of action is confessed by the answer, and is not to any extent avoided. It appears by the amount of the Judgment that the full current rate of Exchange on the seven hundred dollars remitted by the Defendant below, was allowed.

The counter-claim for commissions is not adequately alleged in the answer to make it available to the Defendant below. The allegation is that he “ charged twenty-five dollars for his comrbission.” He does not allege that the charge was true, or that the services for which he made the charge, were worth that or any other sum. In verifying the answer, he, in effect, only swears that he charged that sum, and not that the charge itself was true or just. I do not think that the allegation is sufficient to admit proof to sustain a claim of twenty-five dollars or any less sum for Commissions. The existence of such a claim is not alleged, nor can it be implied from the statement that he charged it. Proof that he made the charge, which is all that is alleged, would not alone sustain a claim for the amount charged, or any less sum. Proof of other facts, not alleged, would be required to resolve the charge into a valid legal claim.

The judgment of the District Court must be affirmed.