14 La. Ann. 3 | La. | 1859
The defendant was the holder of a promissory note drawn by one Engman to the order of M. D. Marvel, the plaintiff. The note was indorsed by Marvel'protested for non-payment by the holder.
Citations were made out by the Clerk, and also copies of the petition. These, instead of being’ served, appear to have been handed to Engman. Engman took the two copies of the petition to a member of the bar, (who supposed he had authority for that purpose,) and employed him to defend the action both for himself and the indorser. In pursuance of this retainer, the attorney filed an answer for both defendants. The case was tried upon the issue thus formed, and judgment rendered in favor of Manouvrier, the plaintiff in that action.
The first intimation Marvel had of the proceedings, as it appears by the record, was the seizure of his property upon execution. lie thereupon injoined the execution and instituted the present action of nullity'against the judgment, on the ground that he was never cited and that ho had never authorized the attorney to represent him in the suit. His petition is accompanied by the proper affidavit, and its allegations, as to the absence of authority in the attorney, are supported by the testimony of the lawyer who filed the answer, the same being received without objection.
No improper motives are imputed to the attorney. The production by Engman of the two copies of the petition, coupled with the fact that it is usual for the makers of accomodation notes to employ counsel to defend the indorsers as well as themselves, was well calculated to deceive the most cautious.
From a judgment perpetuating the injunction and annulling the decree against Marvel, Manouvrier prosecutes this appeal.
The ground on which he expects a reversal of the judgment, is thus stated by his counsel: “ The question is not, whether the citation and petition were served on Marvel, for it is not contended that such was the case ; but, that the service was waived by the answer; that if the answer wore signed by Marvel, he could not allege a want of service, nor can he now, that an attorney of this court has answered for him, unless he can show that he did not authorize him to appear, coupled with the further fact that he had a good defence, or that fraud was practiced ivpon him.”
In support of this position, sundry decisions of the common law courts are cited, some dicta of this court in cases supposed to be analogous, and the case of Walworth v. Henderson, 9 An. 339. This last case supports fully the doctrine contended for by defendant, but then, the reasoning of the court is all in reference to a judgment rendered in the State of Mississippi, upon the appearance entered by an attorney there, and the court was only considering the effect of such appearance at common law. It can have no application to a case arising in our own courts. Such a case must be settled by the laws of Louisiana.
In this case, judgment has been rendered against a party, without service of petition and citation, and without any authorized ajjpearance by any one on his behalf. Whilst the proceedings were all fresh in the minds of the parties, and in less than three months from the date of filing the petition, the month following the rendition of the judgment, and immediately on the service of the notice of seizure, this suit was instituted, thus placing it in the power of the defendant to show the authority, if any existed.
The case is, therefore, free from the suspicion which necessarily attaches to the disavowal of the acts of an attorney many years after they were performed, and after the proof of the authority has been rendered difficult. It presents under the
It is the attorney of the defendant, that is, some one whom he has retained and employed, who is by Art. Ill'of the Code of Practice authorized to acknowledge that the petition has been duly served. No other person is by law authorized to perform this act for defendant. See 8 N. S., 234; 1 An. 398 ; 2 An. 840.
In this, as in the case of the returns of Sheriffs, our law appears to differ from the common law. At common law, the return of the Sheriff cannot be contradicted by the parties to the suit. 9 An. 340. Under our law, such return, even in regard to citations on which judgments have been rendered, may be shown to be false. Sloan v. Menard, 5 An., 219 ; Delogny v. Smith, 3 L. R. 422 ; 3 L. R. 476, 1 An. 297, 2 An. 846, 16 L. R. 441.
At common law, it seems the unauthorized entry of appearance by an attorney will bind the party, provided the attorney is able to respond in damages to the extent of the injury suffered by the defendant. Under our law, the plaintiff is left to his remedy against the attorney who, without authority, undertakes to appear for and represent another in a court of justice, (Pothier, Cour de Mandat., 1130, vol. 5, p. 274,) and the proceeding- is treated as voidable, if not void. 5 An. 219, Sloan v. Menard, already cited. The party is not bound to show that he had a defence to the action. He may do that when he is cited.
The judgment appealed from must, therefore, be affirmed.
Judgment accordingly.
