20 Iowa 161 | Iowa | 1866
The ancient common law required the parties to be present and prosecute, or defend in person. It required a patent, or special authority from the crown (a dedimus potestatem de attornato faciendo), to enable parties to appear by attorney. Afterwards, by various statutes, the right to appear by attorney was recognized. But a party might still sue or defend in person, and the right to prosecute or defend by attorney was a mere privilege, intended for the convenience and benefit of suitors. See, on the subject, 3 Bl. Com., 25; Fitz. N. B., 25, 95; Gilbert C. P. C., 8; Thompson v. Blackburn, 1 N. & M., 271; 2 Keble, 199; Glanville, lib. xi, c. 1; Com. Dig. Attorney (B), 7; 1 Salk., 86; Id., 88; 6 Mod., 16; Cro. Jac., 695; 1 Stra., 693; 1 Keble, 89; see also 1 Binney, 214; Id., 469; 5 Dana, 11; 3 Pa., 72, 76. In the earlier stages of the law, as the above authorities show, attorneys were appointed orally in court. Afterwards they were allowed to be appointed by warrant out of court, and the practice of the court was to require the warrant to be filed, which might however be done at any time before judgment, and the want of it in the record was aided by statute, and could not be assigned for error. This strictness has been gradually relaxed, until it is at the present time the settled rule, that although an attorney cannot, without special authority, admit service of jurisdictional process upon his client, yet it will be presumed in all collateral proceedings, and perhaps on appeal or in error, that a regular attorney-at-law who appeared for a defendant, though not served, had authority to do so. See authorities supra : also, Lagow v. Patterson (on appeal), 1 Blackf., (Ind.), 327 (1824); Hill
But the contraiy is now settled both in the federal and State courts with respect to foreign judgments, and consequently a judgment debtor, in an action against him on the judgment of another State, may successfully defend by showing that the attorney who' entered an appearance for him had no authority to do so. Hindman v. Mackall, 3 G.
It may be doubted whether the above distinction between foreign and domestic judgments is fully settled ; and if so, whether it rests on sound principles. Is not the gravamen the same in the one case as in the other, and does it not consist in the unauthorized act of the attorney ? We deem the rule properly settled as to foreign judgments. Why should it not equally apply to an action on a domestic judgment? The only reason that occurs to us is, that in the case of a foreign judgment it is impossible, or at least unreasonable, to require the defendant to go to the courts of the State which rendered it, and attack it directly by a bill or motion; hence, he is permitted to plead the want of authority in the attorney, defensively and collaterally. Whereas in the case of a domestic judgment it may be deemed better to force the party to assail it directly (thus giving the court an equitable control over the proceedings), by prohibiting him from resorting to the plea of a want of authority in the attorney, collaterally, as a defense to a scire facias, or direct action on the judgment. If the distinction is maintainable, it must be on some such ground.
Certain it is, however, as the authorities hereinafter cited
No examination of this subject would be complete or satisfactory withput a reference to the leading cases respecting it, decided in the English and American courts. It is laid down as law in an early case in Salkeld, that “ when an attorney takes upon himself to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him.” 1 Salk., 86.
The rule (taking the above loose report to mean what the case is generally cited to prove), has, we submit, no foundation in reason to stand upon. It obliges a person to be bound by the unauthorized act of a mere stranger. It binds him by a judgment of a court without a day in court. It relieves the other party of a duty which, in reason belongs to him, viz., to serve his process and to see, at his peril, that his adversary is in court. And it carries out this unsoundness by compelling the wrong party to look to the attorney. True reason and logic would say, if an attorney appeared for me without nay knowledge or authority, express or implied, I should not be bound by the act if never ratified or promptly disavowed, and if the adverse party, being ignorant of the want of authority, and carelessly omitting to serve process or to require the attorney to show his authority, has been damaged, he and not myself should be the one to look to the attorney.
That such a rule as the one laid down in 1 Salkeld, 86, supra), should permanently stand, without modification, as the law of enlightened tribunals, would be impossible. But, as I shalkproceed to show, the courts, instead of over
“An attorney appeared and judgment was entered against his client, and he had no warrant of attorney ; and now the question was, if the court could set aside the judgment? Et per Cur. If the attorney be able and responsible, we will not set aside the judgment. The reason is, because the judgment is regular, and the plaintiff ought not to suffer, for there is no fault in him; but if the attorney be not responsible, or suspicious, we will set aside the judgment; for otherwise, the defendant has no remedy, and any one may be undone by that means.” (And see 8. G, 6 Mod., 16, where the language used is, that “ if the attorney be a beggar, or in a suspicious condition, the court will set aside the judgment.”)
It may be that the only objection made here was the want of a warrant of attorney, and not the want of authority in point of fact. But assuming that it was the latter, the right to relief is thus illogically made to depend upon the question whether the attorney was or was not responsible, and not upon the existence of his authority.
Such a doctriné could not impose upon the fine understanding and solid judgment of Lord Mansfield, and the case of Robson v. Eaton (K. B. 1785), 1 Term 62, without professedly overruling the cases in Salkeld, does so in effect by proceeding upon directly opposite principles. This will be obvious by a brief statement of the case, which was an action for money had and received. The
While this was the state of the law in England, the case of Denton v. Noyes (the leading New York case on this
The points ruled by the court in that case are correctly stated in the syllabus, and are as follows :
1. Where “an attorney of this court appeared for a defendant, against whom a writ had been issued but not served, and, without authority from the defendant, confessed a j udgment which was entered up in vacation, the judgment was «held regular.. An appearance by an attorney of the court, without warrant, is good as to the court, and the defendant has an action against the. attorney. Aliter, if there be any fraud or collusion between the plaintiff’s attorney and the attorney for the defendant, or if the attorney for the defendant be not responsible, or perfectly competent to answer to his assumed client, the court will relieve against the judgment.”
2. Where there is no fraud “'the court, in order to protect the plaintiff from suffering by the act of the attorney, and at the same time'to save the defendant from injury, will let the judgment stand, but stay all proceedings,'and let in the defendant to plead, if he has any defense.”
In explanation, Kent, Ch. J., observes: “ If there had been any collusion between the plaintiff and the attorney [who assumed to act] for the defendant, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground that the plaintiffs have acted in good faith. I am disposed, there
And this case has since been followed in, and is the law of New Yorlr, though the common law rule, even as thus modified and shorn of its severity, has been frequently pronounced a bard one, and the majority opinion in Denton v. Noyes, criticised by subsequent judges, as will be seen by reference to the following cases: Meacham v. Dudley, 6 Wend., 514; Williams v. Van Valkenburg (approving Yan Ness’ dissenting opinion,'but following the majority on the principle, of stare decisis), 16 How. Pr., 144 (1858); Ellsworth v. Campbell (declaring that inability of attorney to pay, rightly had nothing to do with the question), 31 Barb, 134 (1860); Allen v. Stone (strongly dissenting from but following principal cases), 10 Barb., 547 (1851); and see American Insurance Company v. Oakley, 9 Paige, 496 (1842); compare Campbell v. Bristol, 19 Wend., 101 (1838).
It will thus be perceived that Denton v. Noyes so far recognizes the early English rule as to hold that want of authority of an attorney for the defendant to appear (the plaintiff being innocent), is not alone sufficient cause for setting aside the judgment, if the attorney who appeared and acted be responsible and able to indemnify the party. And it will also be seen, by reference to the cases above cited, that the prevailing opinion, were the question in that State res nova, is that, on principle, the responsibility or otherwise of the attorney has nothing to do with the question, and that no party, not guilty of negligence, should be bound by the act of another, which was wholly and confessedly unauthorized and unratified.
And in other States it is now the constant practice, as
And in England, in the Court of Exchequer, the rule as laid down in Salkeld has quite recently, and upon great consideration, been criticised and partially, at least, overturned. See Bayley v. Buckland, 1 Exch. (1 W., H. & G.), 1 (1847);
This case, Bayley v. Buckland, supra, was very carefully considered, and the prior cases called to the attention of the court. If any part of the early rule shall stand, it should only do so with the above modification. Those inclined to pursue the subject further in the light of English adjudications may consult: Doe v. Eyton, 3 B. & Ald., 785; Hubbard v. Phillips, 13 M. & W., 702, (1845); 14 L.
3. That the plaintiff in that suit (Hasty) or his attorneys procured an answer to be filed by fraudulent representations, and by an attorney who had from the present plaintiff no right, shadow or color of authority to do so.
4. That the present plaintiff had rights which were injuriously affected by that decree.
5. It does not affirmatively appear from the petition that the plaintiff has been guilty of laches in attacking the Hasty decree, that is, it does not appear that rights on the part of third persons attached after the plaintiff had knowledge of the decree, and prior to the commencement of this suit.
6. It is admitted that there is no statement in the petition that the attorney or Hasty is insolvent or unable to respond in damages.
Assuming, these to be the facts, it is clear that if there had never been any sale under the Hasty decree, or if Hasty had become the purchaser and were still the owner of the land, the present plaintiff would, according to the
And this brings us to the more difficult question, whether, assuming these facts, and the further fact that the demurrants in the case at bar are innocent purchasers of the land, the plaintiff is entitled to relief against them.
This obviQusly involves the further question, whether, on the above facts, the Hasty decree, as against the plaintiff, is utterly void, or only voidable. If void, the plaintiff (unless equitably barred by his negligence or otherwise, a question not before us) is entitled to relief against everybody. If voidable only, he would not be entitled to relief against bona fide purchasers for value.
It is our opinion that if the facts stated in the petition, and above assumed, are true, the decree, as to the plaintiff, was a nullity, and could not be the basis of any valid sale. We see no escape from the conclusion that it is good or bad —binds him or does not bind him; there is no half way house.
The most of the cases heretofore cited, arose between the immediate parties to the judgment or decree. In their facts, therefore, they would not be wholly applicable to the present aspect of this case, though their principles have more or less bearing upon it. In arriving at the conclusion that the decree, on the facts assumed, would be loholly * null and void, as to the present plaintiff, we have been much fortified by finding that such would be the judgment of the civil law, under such circumstances. By the Roman law, and the practice under it in modern Europe, a party to a
And it is clear that the civil law would hold such a decree as the one obtained by Hasty, an absolute nullity as to all persons. Code VII, Lib. LX, LVI, S. P.; Dr. Linde’s Lehrbuck of German Civil Proceedings, § 116. As to Prance, see Code de Proce. Civ., titre XVIII; Pothier Cour. de Maud., § 130. And see also, Civil Law authorities cited by Van Ness, J., 6. Johns., 314, 315; Ridge v. Alter, 14 La. Ann., 866; Id., 3.
Our conclusion, above indicated, is fully warranted and supported by a decision of the .Supreme Court of the United States which covers every question, as to the unauthorized appearance, arising in the case at bar, so far as it is presented by the demurrer. We refer to the caso before cited of Shelton v. Tiffin, 6 How. (U. S.) 163, decided in 1848. In order that the extract which will be presently made from that decision may be understood, a brief reference to the facts of the case is necessary. ■ Thesé are quite numerous, but on the point which now concerns us were as follows: Two citizens of Virginia (Moseby and Bouldin) sued, in the Circuit Court of Louisiana, John M. Perry, a citizen of Louisiana, who was served, and also Idlburn P. Perry (his son), a citizen of Missouri, who was not served. One Crawford, a regularly admitted attorney of the
After holding that where fraud is alleged and relief sought againsth judgment and a judicial sale of property, that a court of equity will sustain a bill and that it is not demurrable, on the ground that the plaintiffs have a plain and adequate remedy at law, the court, per Mr. Justice McLean, who delivered the opinion, says:
“The great question in the case,- arises out of the judicial sale of the mortgage debt to Anderson, the mortgagor, under a judgment obtained by Moseby and Bouldin against L. P. Perry and John M. Perry. Had the Circuit Court which rendered that judgment, juris.diction of the case ? The plaintiffs (Moseby and Bouldin) were. citizens of Yirginia, John M. Perry was a citizen of. Louisiania, and L. P. Perry, of Missouri. No process ■was served upon L. P. Perry, nor does it appear that he had notice of the suit until long after the proceedings .were had. But there was an appearance by counsel for the defendants, and defense was made to the action. This being done by a regularly practicing attorney, it affords prima facie evidence, at least, of an appearance in the suit by both the defendants.” The court then refer to the evidence of Crawford, the attorney, to the effect, that the answer for L. P. Perry was filed without authority from him, and in respect thereto remark: “ This evidence does not contradict the record, but explains it. The appearance was the act of the counsel, and not the act of the*185 court. Had the entry been, that L. P. Perry came personally into court and waived process, it could not have been controverted. But the appearance by counsel, who had no authority to waive process, or to defend the suit for L. P. Perry, may be explained. An appearance by counsel under such circumstances, to the prejudice of a party, subject the counsel to damages; but this would not sufficiently protect the rights of the defendant. He is not bound BY the proceedings, and there is no other principle which can afford him adequate protection. The judgment, therefore, against L. P. Perry -must be considered a nullity, and consequently did not authorize the seizure and sale of his property.”
An execution sale under a fraudulent judgment is void, if the purchaser had no knowledge of the fraud. But in this case, L. P. Perry was not amenable to the jurisdiction of the court, and did no act to authorize the judgment. He cannot, therefore, be affected by it, or by any proceedings under it. In this view it is unnecessary to consider the objections to the procedure under the execution. * * The judgment being void' for want of jurisdiction in the court, no right passed to Samuel Anderson under the marshal’s sale. 6 How. (U. S.) 163, 186, 187.
In reaching this conclusion, we have not overlooked the consideration that the records of a court should have a large degree of sanctity attached to them. Parties who have been negligent, should not, especially if intervening rights have grown up, be permitted to impeach them-by extraneous evidence. And in all cases, the right should be clear, the injury palpable, and the evidence convincing.. The reason for this is manifest in the consideration, that after the lapse of time it is very easy, for a- party to say, and under our law swear, that an attorney who is perhaps dead had no authority to represent him, and correspondingly difficult for' the other party to show the contrary.
Had Parnell or his grantees examined the record in the Hasty forclosure, while they would have the right to rely upon the presumption of regularity, they would have discovered that the plaintiffs’ mortgage was first recorded, and therefore prima facie the first lien; that no service of process was made or even attempted upon the plaintiff; and that the answer which confessed material facts was in the handwriting of plaintiffs’ attorney.
If they had purchased the Hasty decree or judgment before sale on execution under it, it would have been a mere chose in action, and they would have stood in Hasty’s shoes respecting it. Burtis v. Cook and Sargent, 16 Iowa, 194; Gett & Brewster v. Lucas, 17 Iowa, 503.
It cannot validate a judgment well for want of jurisdiction, that there has been a sale under it. We wish to emphasize another thought which is this, that the conclusion reached does not excuse, but in view of public policy, requires a party who has been represented by an unauthorized attorney, to disavow and disaffirm his action promptly upon receiving knowledge thereof. If he does not thus speak when he ought to, the court will not hear him when he wants to, especially if his delay has been prejudicial to the rights of third parties. We simply recognize the right of a party to be relieved against an unauthorized judgment, in a strong case like the present, also recognizing the fact that his own negligence or unreasonable delay, and the like, may defeat the right. In applying these principles the court should endeavor to do justice in the particular case, and when they effect this, they will not be far from the right.
We also observe that the doctrine of this opinion applies
“THOMAS MERCER,
“ Recorder of Marshall Go., Iowa.”
This mortgage is duly acknowledged and recorded.
It is made a ground in the demurrer that this description is insufficient; that the mortgage was executed in blank, as to the description, and, therefore, the instrument is not operative in law. The mortgagors do not make this objection. The instrument might be sufficient as against a subsequent incumbrancer, without reference to the addition made by the recorder; but however this might be we are clearly of opinion that they cannot object that the recorder executed the written authority conferred upon him. This authority was equivalent to a power of attorney to the recorder to do as ho did.
We only add- that the court, when it sustained the demurrer of part of the defendants, also erred in dismissing the petition as to Blackmarr and the others who made no defense. Judgment reversed and cause remanded, and appellees have leave to answer in the District Court.
Reversed and remanded.
