Field, C. J. and Cope, J. concurring.
This is an action of ejectment, in which the plaintiff claims title through a decree of foreclosure of a mortgage claimed to have been executed by one McMillan and his wife upon the premises in question. The defendant claims under a lease from McMillan and wife.
On the trial, the plaintiff offered in evidence the record of the foreclosure proceedings, to which the defendant objected, on the ground that it appeared that no summons had been issued in the case, and no evidence was given of an authority to the attorney who put in an answer for the defendants. The authority of an attorney at law to appear will be presumed where nothing to the contrary appears. The question whether a married woman could alone authorize an attorney to appear for her does not arise, inasmuch as the appearance in the case in question was for both husband and wife. Although the action is said, by section twenty-two of the Practice Act, to be commenced by the filing a complaint and issuing a summons, yet by section thirty-nine it is provided that
It is objected that the mortgage was not duly executed by the wife and her husband so as to bind the property; but all inquiry into that subject is concluded by the decree of foreclosure and sale in an action to which the persons executing the mortgage were parties.
Judgment affirmed.