Garrison v. McGowan

48 Cal. 592 | Cal. | 1874

By the Court, Wallace, C. J.:

1. There is not even the slightest evidence of fraud upon the part of Moore nor of Edmonds, nor, indeed, of any other person, in the proceedings resulting in the judgment in favor of McGowan and against Garrison. Edmonds, as the attorney of McGowan, had no relations with Garrison, nor with Pratt, his agent, which involved the duty upon his part, to consult with the latter or give him any special notice of the pendency of the suit of McGowan against Garrison. That duty belonged to Moore, who was the attorney of record for Garrison in that action, and Moore testified that he distinctly notified Pratt (who had, in the meantime, become the agent and attorney in fact of Garrison,) of the pendency of the suit of McGowan v. Garrison, and that this notice was given before the sale of the property had taken place, and in ample time to have prevented the sale. Moore was cross-examined by Pratt, at the trial, and being inquired of as to the fact of his having given him this notification,, said: “I went to your office; I opened the door and went in. You were standing by the table talking with a gentleman. I mentioned to you there was the suit of McGowan v. Garrison, a street assessment suit, which ought to "be attended to. You stopped me, put your hand up, and .said, ‘I know all about it; I will attend to it.’ That is all ;you said, sir, and I went out.” If, as Pratt testifies, he .■did not comprehend the import of this distinct notification '■ given him by Moore, that circumstance would not tend to 'show that Moore was acting fraudulently or in bad faith in attempting to bring the matter to his attention. That Pratt did not understand Moore is rather to be attributed to a possible indisposition upon his part to listen, as he testifies that at that time, for particular reasons he “did not wish to have any particular conversation with Mr. Moore beyond what was actually essential.” Moore certainly seems to have done his whole duty in giving, or endeavoring in good faith to give, information to Pratt, which, had it been listened to, would have protected Garrison from the subsequent loss of his property.

2. Moore, although he had not in fact been admitted to ^practice in the Courts of this State, by order entered in the ■usual manner, had been regularly admitted an attorney and • counselor of all the Courts of the State .of ¡New York, at a ■general term held in the city of New York on the 25th day of November, 1862, and might have been admitted to practice in the Courts of this State upon motion. This motion he believed had been made, and the usual order of admission obtained; and, acting upon that belief, he had been accustomed to appear in the Court below as an attorney and counselor, conducting business there without challenge or question from any quarter. He had been habitu.ally recognized by the Court as a member of. its bar. He was, therefore, in any view, de facto, an officer of the Court, and the validity of his acts as to third persons cannot collaterally be called in question. The appearance of the defendant, entered by Moore as his attorney, in the action of McGowan v. Garrison, must be regarded, therefore, as of the same import, in all respects, as though Moore had "been admitted to practice in the Court below by the entry of the usual order of admission.

3. If an attorney at law, having no authority to do so, •enter the appearance of a-defendant in an action without the service of jurisdictional process, and the fact of the want of the authority be made to appear, such proceeding" is void as to the defendant, whose appearance has been so-entered. But the act of the attorney in entering the appearance of a defendant, carries with it a presumption of' due authority upon his part to do so. Therefore, if, after an appearance entered, judgment be rendered against the defendant, and the latter seeks relief against the judgment-on the ground of wánt of authority of the attorney to enter-his appearance, it is incumbent upon such party “to make out a clear and unmixed case.” He is required “ to show clear merits; to take prompt action, and to establish his right by cogent and strong evidence.” There would, indeed, be but little security afforded by judicial proceedings had, if a party who had been unsuccessful in litigation could overthrow or defeat them upon mere suggestion of want of authority in his attorney to appear for him, or to conduct the controversy upon his behalf; and it would, from the nature of the case, usually be a work of much difficulty for the opposite party to show the authority, even if it existed. It is apparent that the proof upon the part of Garrison here was not sufficient to overcome the presumption of authority in Moore to enter his appearance as a defendant in the action brought by McGowan. There is really no proof whatever that Moore did not have the requisite authority in that behalf. Boberts, who had long been the attorney in fact of Garrison in California, had been accustomed, in other cases, to employ attorneys about the business of Garrison, and Moore was one of the attorneys who had been thus employed.

4. To say that he had no authority to employ Moore as an attorney for his principal in the McGowan suit is to ignore a uniform course of business pursued by Boberts for a number of years, with the knowledge, and at least the tacit approval of Garrison. Boberts had during the time repeatedly engaged the services of Moore about the law business of Garrison; had paid him with the funds of Garrison for his services in such business, and jp this course of business the latter had never made an objection. It ap-i pears to have been the habit of Garrison to leave the general conduct of suits in California with Roberts, as his agent. This is the purport of Roberts’ testimony at the trial, and it is uncontradicted. Moore himself testified that in all cases (including, of course, the case of McGowan v. Garrison) in which he had appeared for Garrison, he was employed to do so" by Roberts, the agent of Garrison. In fact, the evidence given at the trial, so far from displacing the presumption of the rightful authority of Moore to appear, directly establishes the fact of his employment by Roberts for that purpose, and that the latter had the requisite authority from Garrison in the premises.

Judgment and order denying a new trial reversed, and cause remanded for a new trial. .Remittitur forthwith.

Neither Mr. Justice Crockett nor Mr. Justice McKinstry expressed an opinion.