16 Miss. 421 | Miss. Ct. App. | 1847
delivered the opinion of the court.
Miller and Cox obtained a supersedeas to a judgment against them in the circuit court of Madison county, in favor of defendants in error, which on motion was discharged in that court, and the case comes up to reverse the judgment on that motion. The facts are to' the following effect: The suit was against the maker and indorsers of a promissory note, Miller and Cox being the second and third indorsers. Process was issued to Madison county for the maker and first indorser, arid to Washington county for Miller and the last indorser, but was not returned. To the declaration a plea was filed by an attorney of the court, commencing in these words: “ And the said defendants, Washington, Cox, and Miller, come and defend,” &c. The plea was the general issue, and the plaintiff obtained a verdict and judgment. An execution issued, which was levied on the property of Miller; he petitioned for a writ of error coram nobis and supersedeas, stating in his petition that he had never
At the hearing of the motion the defendants in the court below proposed to make up an issue, to try whether Ott was their attorney, and proposed and offered to prove that the attorney was not employed by them; that he had no authority to appear in the suit; that such appearance was unknown to plaintiff in error, and had never been approved. That the plea was filed at the request of the plaintiff’s attorney, in order that his clients might get a judgment at that term against the maker of the note. That this was done under a promise from the attorney of Ewing and Cromey, that the appearance and judgment should not operate prejudicially to the other defendants; but the court refused to allow the issue and proof to be made.
The apparent hardship of this case has induced us to examine into the question involved, with great care. In the case of Jones et al. v. Hunter et al. 4 How. 342, a plea like this, for the defendants generally, was held to be an appearance of all the parties, although two of the defendants had not been served with process. The same question was decided in the same way, in the case of Henderson v. Hamer et al. 5 How. 525. This question has been the subject of adjudication in other states, and has been decided in the same way. McCullough v. Guetner, 1 Binney, 214; Hills et al. v. Ross, 3 Dallas, 331. This precise point received a very full consideration by Chancellor Kent, whilst chief justice of the supreme court of New York; and his conclusion was, that a party was bound by the appearance of an attorney of the court, although he had not been served with process, and had not authorized the attorney to appear for him. Denton et al. v. Noyes, 6 Johns. 296. The cases of Hall v. Williams, and Starbuck v. Murray, so much relied on, have been examined, and whilst they tend to establish the position assumed, yet they do not meet the precise question. They were both actions brought on judgments recovered in sister states, and the question was, how far they were
The case of Starbuck v. Murray was an action commenced-in New York on a judgment which had been rendered in Massachusetts, on a proceeding commenced by attachment. The defendant pleaded that he had not been served with process, and had not appeared in person, or by attorney; the plaintiff replied that he was estopped by the record, which declared and averred that the defendant appeared; the replication concludes with a readiness to verify by the record, and the defendant demurred. The question was of course as to the sufficiency of the replication ; and it was evidently bad. We have
In the case cited from 6 Johnson, Chancellor Kent stated the rule of the king’s bench to be, that if the attorney was not responsible, or competent to answer his client, the court would
The judgment discharging the supersedeas must be reversed, and the cau.se remanded, to be disposed of according to this opinion.