Josiah Abbott & Co. v. Dutton

44 Vt. 546 | Vt. | 1872

The opinion of the court was delivered by

Ross, J.

An appearance by an attorney binds the party for ' whom he appears, whether the attorney was employed by the party or not. St. Albans v. Bush, 4 Vt., 58 ; Spaulding et al. v. Swift, 18 Vt., 214 ; Newcomb et al. v. Peck et al., 17 Vt., 302.

If tbo party has any remedy for the unauthorized appearance of an attorney, other than his remedy against the attorney, it is by application directly to the court which rendered the judgment against him on the unauthorized appearance of the attorney, or by a writ of error, and not by audita querela. Spaulding et al. v. Swift, 18 Vt., 214.

One co-defendant may employ an attorney for the other co-defendants, and the appearance by such an attorney for all will bind all. Scott v. Larkin, 13 Vt., 112 ; Spaulding et al. v. Swift, 18 Vt., 214 ; Whitney & Titus v. Silver, 22 Vt., 634. In the last case the court restrict the authority of a co-defendant to employ an attorney for the .other co-defendants to a case where the other co-defendants have been duly served with process, and are before the court.

Erom an inspection of the copies of appeal in the case complained of, it appears to be there certified that the plaintiffs in this suit, the defendants in that suit, accepted service on the writ in that suit, appeared by their counsel on the occasion of the first continuance ; appeared and requested the second continuance, and appeared at the time the justice rendered judgment in their favor, from which the plaintiff in that suit, defendant in this, appealed. In addition to these appearances the county court have found that Mr. Collamer appeared for the defendants in that suit, and consented in open court that the very judgment might be rendered against them, of which they now complain.

By the consent of the counsel on both sides, this court was allowed to inspect the docket entry of that case for the May tenn, 1870, and find there recorded a general appearance of another attorney for the defendants, which appearance was continued to the December term, when the judgment complained of was rendered. Mr. Collamer’s name does not appear to have been entered upon the docket as the attorney of the defendants in that case. We do not decide whether his appearance for the defendants generally, and consent that judgment should pass against them, is any the less binding because he did not enter his name upon the docket entry of the case. Being a well known attorney of the court, we are unable to see upon what principle the failure to enter his name for the defendants should make his acts any the less binding. The decision of this case does not render it necessary to decide that question, as there was a general appearance of an attorney before the justice and in the county court. The authorities first cited, show conclusively that such an appearance waived any want of service on the defendant Abbott, and rendered that judgment valid and binding upon both Abbott and Brown ; a,t least, so far so, that it cannot be set aside by audita querela.

Judgment of the county court is affirmed.