37 How. Pr. 1 | N.Y. Sup. Ct. | 1867
The plaintiff in November 1865, obtained a judgment of divorce from the defendant, his wife, by default, by reason of her adulterous intercourse with other men. Service was made by publication, and at the time of the service, the defendant was acting as a surgeon in the army of the United States.
She now moves to set aside the judgment, and for leave to come in and defend, and has served the papers for the motion on the attorneys of the plaintiff) by whom the action for the divorce was obtained.
The attorney thus served appears on the motion, solely for the purpose of objecting to the sufficiency of the service. If, therefore, the service is sufficient, the motion is not opposed, and the defendant is entitled to the relief asked, on proof of the service of her motion.
The general rule at common law was that the authority of the attorney in an action ceased with the recovery of a judgment. (1 M. &. P., 513 Graham’s Pr., 47.)
Notwithstanding this limitation, it was held that his authority continued until execution issued (8 J. R., 361), and still further until the payment of the debt. But he could not acknowledge satisfaction without a new warrant. (10 J. R., 220.) But the Revised Statutes changed the law, and authorized the attorney to acknowledge satisfaction at any time within two years from the entry of j udgment. (2 R. S., 362, ξ 24, 1st ed.)
The power óf the attorney has been held to continue for two years, so that a notice of appeal served upon him, was as effectual as upon the party, (Tripp agt. DeBow, 5 How. Pr. R., 114, and the authorities cited). See also the remarks of Cowen, J., in Lusk agt. Hastings, (1 Hill, 656,) Bracket agt. Norton,(4 Conn., 522,) Winans agt. Mason, (21 How. Pr. R., 153,) Lee agt. Brown, (6 J. R., 132,) Wardell agt. Eden, (1 John. Cases, 121.)
The case of Drury agt. Russell, (27 How. Pr. R., 130) is directly in point, and decisive of the question. In that case six years had elapsed after judgment, yet service on the attorney held regular.
I have looked into the affidavits to see whether the place of residence of the plaintiff was known. The defendant says she understands his home to be Cortland. Mr. Johnson, the attorney, says he was told by plaintiff he' was going west on .a lecturing tour; that he had addressed a letter to him at Cortland where his sister resides, and by whom plaintiff’s -letter was forwarded to him, but he (J.), had not received an answer.
It is obvious that service by mail would not be likely to reach the plaintiff, so that no benefit would result from resorting to that mode of service.
In this and in all similar cases of service upon an attorney, so long after entry of judgment, the court, upon his affidavit showing that he had made dilligent effort to inform his client of the service of papers and had failed, would upon his application, postpone the hearing for a reasonable time, so that the client might be notified, and in this way, injustice to both parties be avoided.
The attorney, thinking the service irregular, did not make the request, and of course, no postponement was granted.
The motion is granted, but it must be upon paying $10, costs of the motion, and the costs of the cause after service of the complaint, an answer to be served within twenty days.