Wheeler v. Cox

56 Iowa 36 | Iowa | 1881

Adams, Oh. J.

l. aitobney : ot authority: evidence to overcome. We may assume, in the absence of any averment or evidence to the contrary, that Foster was a practicing attorney of the court in which the action was brought. It is to be presumed, then, that he had - ° x ' authority to bring the action, and the presumption must prevail unless -the evidence of a want of authority is clear and satisfactory. The records of a court, regular upon their face, have a large degree of sanctity attached to tliem^ and are not to. be lightly overcome. , Harshey v. Blackmarr, 20 Iowa, 161. We have, then, to consider whether the ’evidence of a want of authority on the part of the - attorney, Foster, is such that a presumption of authority arising from’ his relation to’ the court should be regarded as overcome.

The evidence of a want of authority to bring the action consists mainly of the testimony of the plaintiff himself. It appears, from his testitmony, that there was a mutual account between the plaintiff and Oox, and a. dispute between them . in regard to certain items. The plaintiff employed Foster to draw up the account in his favor from certain memoranda given him. The account then drawn up by Foster was retained by him, and an action brought upon it. The plaintiff had knowledge that the account was retained by Foster, but he testified that he did not authorize him to bring an action . upon it, but, on the contrary, that he expressly told him that . he and Cox had settled. If this testimony stood alone we .might regard it as sufficient to overcome the presumption of authority on the part of Foster. But Mr. M. E.- Outts, . who was employed as an attorney by Oox to defend in the action, and drew and filed the counter-claim upon which' the judgment was rendered in Cox’s favor, testifies that he had negotiations with the plaintiff in regard to the continuance of the action, and, also, in regard to its. settlement. It is true he says that it is possible that his talk- with, the plaintiff might have been before the action was really brought, but it is evident from an examination of his testimony that such is not his recollection. Besides, he is corroborated by Oox,.who "testifies that the plaintiff was in attendance at a term of court in which the action was pending, and was in the court-room when the case was called.

The presumption of authority on the part of Foster is not, in our opinion, overcome:

Affirmed.