Spaulding v. Swift

18 Vt. 214 | Vt. | 1846

The opinion of the court was delivered by

Redfield, J.

The service was so far defective, in this case, that the writ might well have been abated, if the defect had been properly urged. If a writ is served upon a person, who is not a resident of this State, by attaching property and leaving a copy with a third person, as the agent of the defendant, the fact of agency may be put in issue by a proper plea. But if there is no appearance, and no notice is proved, bonds must be given for a review of the action, under the statute, or the judgment may be set aside upon audita querela. Marvin v. Wilkins, 1 Aik. 107. But if there is a legal appearance, and no plea in abatement is interposed, on account of the defect of service, until after a continuance, or after the general issue is pleaded, it must be considered as waived. Staniford v. Barry, 1 Aik. 321. So that the question here properly arises, whether the appearance of the attorney in this case is to be considered as curing the defect in the service and obyiating the necessity of bonds for a review of the action.

The service in this case is such, that it cannot be treated as a nullity, and so render the judgment void. The defect in the case of Gilman v. Thompson, 11 Vt. 643, was much greater than in the present case, and still the judgment was held valid. We come, then, to the naked question of the appearance of an attorney in a ease, — not what shall be the effect of the acts of the attorney of record, who is properly employed by the parties; for, upon that question, there can be little doubt, that they must bind the parties. And even an appearance by an attorney, employed by one of two or more joint contractors, defendants, will bind all. Scott v. Larkin, 13 Vt. 112.

But what is the effect of the appearance, merely ? In practice in this State, certainly, the appearance of an attorney in court for one or the other of the parties has always been considered a matter, which could not be traversed on the trial of the suit. The attorney acts at his peril, and makes himself liable to the party, for whom he appears, for any default, or want of authority, and to the court, also, for any misconduct. These safeguards have always been found sufficient. But doubtless in some way the party affected by a judgment, collusively obtained by the fraudulent instrumentality of an attorney, whether the attorney acted willingly, or as a dupe, may obtain relief. But we think it should be by application to the court, upon petition, or motion, and possibly by writ of error for error in fact, rather than by audita querela. This question is in effect decided by the case of St. Albans v. Bush, 4 Vt. 58.

Judgment affirmed.

Note, by Redfield, J. There is, no doubt, great looseness in the practice or our courts, in regard to the appearance and withdrawal of the attornies of parties litigant. This is done, here, without any application to the court in form, or in fact. But in the English practice the party cannot change his attorney, except upon application to the court. Rolfe v. Johnson, 46 E. C. L. 757, and notes. See, also, Mac Pherson v. Rorison, Dougl. 217; Kay v. De Mattos, 2 Bl. 1323. Ginders v. Moore, 8 E. C. L. 174. It would seem, too, that every appearance of an attorney, in the English practice, is by a formal warrant, which becomes matter of record. These warrants of attorney are very important instruments in the administration of justice, in the English courts, and are regulated by acts of Parliament; so that the appearance of an attorney, in a court of record, is a matter, which can there only be effected by the party.himself,— unless it be done through the instrumentality of forgery, and perjury also, perhaps.- But these strong precautions are, perhaps, more likely to exist, where there is the greatest necessity for them ; so that they are like great national and personal reformations, which, while they are in truth commendable, are not equally creditable, inasmuch as they do, by contrast, at least, remind us of that which needed reformation. So that, although one is quite conscious, that the readiness, with which an attorney’s name is entered upon the dockets of our courts, must afford great facilities for fraud and imposition, the consideration, that so few complaints of any abuse in that respect are heard, speaks well for the profession here. Warrants of attorney, in England, to confess judgment seem to have been most abused there, as they are most liable to be. The statute 1 & 2 Victoria, c. 110, sect. 9, provides, that no such warrant of attorney “ shallbe of any force, unless there be present some attorney of one of the superior courts, on behalf of such person, [the one giving the power,] expressly named by him, and attending at his request, to inform him of the nature and effect of such warrant, or cognovit."

But whatever may be the difference in the practice of the English courts and those of this State, the effect is the.same. In both courts the appearance is matter of record, and, as such, is in effect the act of the court, as much as any other portion of the adjudication. It is upon that ground only, I apprehend, that the record of a judgment in another State, when it is shown by the record that the defendant did appear by attorney, is conclusive, and cannot be denied by plea. Newcomb v. Peck, 17 Vt. 302.

Ifj then, the appearance by attorney is as much a portion of the adjudication as any other part of it, and, as such, the act of the court, it is very obvious, that the process of audita querela has no natural fitness for the correction of any error, which may have intervened. At common law this process only extended to remedy matters, which had occurred subsequently to the rendition of the judgment, and which the party had had no opportunity of pleading. In this State it has been somewhat extended; but it has been expressly decided, that it does not extend to remedy a wrongful refusal of the appearance of an attorney; Sutton v. Tyrrell, 10 Vt. 87; and it would be almost absurd, to suppose that it could reach an error precisely the converse, and which must some under the same rule of decision.

In what has been said in regard to this case, it has been treated, as if the appearance in the former case had been without the employment of any of the defendants, (and so the pleadings, I think, present this case,) although the case has been argued, by the defendants, in some sense as if the employment were by one of the defendants in behalf of all, — which is the fact, doubtless. Ifthecase appeared in this latterform upon the pleadings,it would be clearly with the present defendant upon another ground, as was held in Bennett v. Slickney, 17 Vt. 531. But the plea merely alleges an appearance, but no employment, by any one, of an attorney. This is, I think, the proper mode of pleading; it is the appearance, that is the gist of the plea, and that appearing of record, it is immaterial to this proceeding |how it came about; it is conclusive, until vacated by some proper process.

We have said nothing about duplicity in the plea, because we think it is not sufficiently set forth, in the special causes of demurrer, wherein the alleged duplicity consists; nor do we think there is any duplicity, — it being proper to allege a legal service and an appearance in the same plea. The service, of itself, would not be sufficient; for without notice, or appearance, bonds must have been given, or audita querela will lie. Indeed, all that goes before the appearance may well be treated as inducement, but wholly unnecessary.