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Vilas v. Butler

26 Abb. N. Cas. 100 Court N. Y. Court of Appeals; English

Delivered by Andrews, J.

Contents

Majority

p. 100
VILAS v. BUTLER.
N. Y. Court of Appeals;
December, 1890.

Headnote

[Reversing 29 State Rep. 644; s. c. 9 N. Y. Supp. 82 .]
1. Attorney; unauthorized appearance; remedy by motionl\ The-remedy of a defendant against whom a judgment is rendered upon the unauthorized appearance of an attorney in his name, is by direct application to the court by motion in the action in which the unauthorized appearance was entered ; and the court has no-discretion to remit the moving party to a remedy by action, unless special circumstances exist which render the remedy by motion inadequate or incomplete[1]
2. Judgment on tmauthorized appearance by attorney for noti-resident vacating on motionl\ The doctrine of Denton v. Noyes, ( 6 Johns. 297 ), that a strictly domestic judgment rendered against a party not served, but for whom an attorney appeared without authority, - is neither void nor irregular does not apply where the defendant against whom the judgment has been obtained in this State upon an unauthorized appearance by an attorney, and who was not served, was a non-resident during the pendency of the suit in? which the judgment was obtained; and such judgment should' be set aside absolutely, and the appearance vacated, on motion.
3. The sat,.e ; insolvency of attorney.] It seems, that if the doctrine-of Denton v. Noyes applied, the judgment should he set aside on, motion where it appears that the attorney is then insolvent,, although at the time of the recovery of the judgment the attorney had sufficient pecuniary ability to respond in damages for its. amount, provided the motion was made before the rights of the-party procuring the judgment had changed to his prejudice.
4. The same; laches in moving.] The motion of the defendent should not be denied on the ground of laches, where the delay has not changed the situation of the parties to be affected by the vacation of the judgment, and especially where it appears that on an appeal by co-defendants from such judgment, it was reversed, and held to have no legal foundation.
Appeals from orders of the general term of the supreme court, third department, affirming orders of
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the special term denying motions to vacate judgments, and to set aside an appearance by attorney.
This action was originally brought by Samuel F. Vilas against the Plattsburgh and Montreal Railroad •Company, and other corporations succeeding to its rights and property, and John B. Page, Peter Butler and George B. Chase, to foreclose a lien upon certain railroad property and to charge the individual defendants with liability for the amount thereof. At the request of defendant Page on behalf of defendant Chase, John N. Whiting appeared for Chase. The special term rendered judgment against the individual defendants, which was affirmed on appeal by the general term. Whiting having been informed that Page •had no authority to retain him to appear for Chase, took no further appeal on his behalf, but upon an appeal by the other individual defendants the court of appeals reversed the personal judgment against them. An attempt having been made, as stated in detail below, to enforce the judgment against Chase, which thus remained •unreversed, Chase moved to vacate the judgments of the special and general terms upon the ground that Whiting’s appearance was unauthorized'; and Whiting having since died, his sole executrix, devisee and legatee, also moved to permit his appearance to be withdrawn, and to set aside the judgment on the ground that his appearance was made upon the representation of Page that he was authorized by Chase to employ an attorney to appear for him, and that the appearance was made in good faith though without actual authority.
This action was commenced June 24, 1875. The defendant Chase, was at the time and has ever since been a non-resident of this state, and he was never served with process in the action nor was any juris
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diction ever acquired over him therein, unless by-virtue of the appearance of Whiting.
The facts upon which the action was based are very complicated. They are set forth in the report of the case, on appeal to this court, in Vilas v. Page (106- N. Y. 439). In general terms, it may be stated that the action was brought to enforce an alleged lien in favor of Samuel F. Vilas upon the railroad, rolling stock and property, formerly of the Pittsburgh & Montreal Railroad Company, but which had become vested in. the Delaware & Hudson Canal Company as lessee-under a perpetual lease. ' The several corporations, which from time to time had succeeded to the rights,, property and franchises of the Plattsburgh & Montreal Railroad Company were made defendants in the action, as were three individuals above named. The individual defendants -were joined as parties upon the theory that in certain dealings between themselves and parties interested in the property upon which the lien was claimed, they had bound themselves to pay the-lien debt, in case the lien should be established, which, obligation inured, as was claimed by Vilas, to his benefit, and was enforcible • in his favor, although he was. not a party to the transaction.
Briefly stated, the transaction relied upon to establish the personal liability of the individual defendants, was this:—Page, Butler and Chase, on the 13th of Sept., 1867, after the foreclosure and sale of the Plattsburgh & Montreal Railroad and the purchase thereof by the first mortgage bondholders, but before a conveyance had been made pursuant thereto, entered into-an agreement with the holders of the bonds by which they became the owners thereof, and substituted to the. rights of the original bondholders, and which agreement provided for the organization of a new corporation, to which the property should be conveyed. The judgment in the foreclosure suit left open the questions
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as to the title of Vilas to certain rolling stock of the Plattsburgh & Montreal Railroad Company, which he claimed under an execution sale, and that' question, although in litigation in the foreclosure action, was undecided when the agreement of September 13, 1867, was made. If Vilas should establish his title in the foreclosure action, then by an arrangement made as early as 1858, between the parties to the foreclosure and the receiver, Vilas was to have a lien on the property for an amount fixed, with interest, representing the value of rolling stock purchased by him, which was in the possession of the receiver. In' view of this contingency the agreement of September 13, 1867, provided : “ The purchasers (Page, Butler and Chase), are to assume the prosecution of that suit (the Vilas litigation in the foreclosure action) and to abide its result and judgment, and if there should be any recovery in said Vilas’ favor, the purchasers agree to indemnify the said parties of the first part and said Platt as Receiver, against the same.” The Vilas branch of the foreclosure suit was finally determined in his favor in 1873, and his. title was sustained, Hogle v. Plattsburgh, etc. R. R„ Co. (54 N. V. 314), but no personal liability was adjudged against the receiver or the vendors of the bonds. It was mainly upon this clause in the agreement that Vilas relied in the present action .0 sustain the contention that the individual defendants were personally liable for his debt.
The plaintiff on the trial of the present action at, special term had judgment in his favor rendered June 4th, 1880, establishing his debt at the amount of $52,-803.73, and adjudging that the individual defendants were, as between themselves and the corporate defendants, primarily liable therefor, and judgment was rendered against them for that amount, with a subsidiary judgment subjecting the railroad and property of the Plattsburgh & Montreal Railroad Company in
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the possession of the defendant, the Delaware & Hudson Canal Company, to a lien for the same debt. The general term having affirmed this judgment, July 2r, 1883, an appeal was taken therefrom by all the defendants, except Chase, to this court, and here the judgment was reversed as to the defendants Page and Butler, and affirmed as to the corporation defendants. The substance of the decision was that the individual -defendants had incurred no personal liability, but that the property was chargeable with a lien for the debt -due to Vilas. Chase not having appealed to this court, the judgments of the special and general terms as against him, stood in form unreversed, charging him with a very large indebtedness, from which the other individual defendants, standing under the same liability and no other, had been relieved. But the ■remittitur of this court provided that the judgments rendered by it in this action should not prejudice ■Chase upon an application for any relief in the court below.
The moving papers show, first, that when the action ■was commenced Chase resided in Massachusetts, and was and ever since has been a non-resident of this ■ State;
Second, that he was never served with process in the action, and had no knowledge or information whatever as to the existence of the action or of any judgment against him until Febuary, 1881, when an action • on the judgment of the special term rendered June 4, 1880, was brought by Vilas against him in the courts of ^Massachusetts ;
Third. That he never directly or indirectly authorized Whiting to appear for him in the action; he ¡neither knew Whiting, nor had ever seen or heard of him prior to the commencement of the suit in Massa-chusetts, nor did he give any authority to Page to -employ an attorney to appear for him.
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The explanation of the conduct of Whiting is furnished in the affidavits. He was employed by Page to defend the action, and entered his appearance for Chase by his direction, believing him to have authority to act for his co-defendants. The affidavits show that the relations between Page and Chase were at that time very hostile, and so continued.
Relief was denied by the special and general terms, merely on the ground of laches on the part of Chase in making the application. The following is a brief statement of the facts presented bearing upon the point of laches. As has been stated, the first notice or knowledge Chase had of the suit was in Febuary, 1881, when the action on the judgment was commenced in Massachusetts. He immediately employed an attorney, who went to New York and saw Whiting, who informed him of the circumstances under which he had appeared for Chase. At this time the case had been appealed by Whiting to the general term in the name of all the individual defendants, and the appeal Avas then pending. The agent of Chase informed Whiting that Chase had never authorized an appearance for him in the action, and notified Whiting that Chase gave him no authority to prosecute the appeal to the general term taken in his name, and that if he went on with it tie Avould do so without authority from Chase. Chase put in an ansAver in the Massachusetts suit which, among «other things, averred that the New York court never had or acquired jurisdiction of his person or property ■■so as to render a valid judgment against him. The case stood for trial for about the period of two years, the defendant meanwhile urging it on, Avhen the plaintiff applied to be non-suited and a non-suit was granted. The affidavit of Dabney, the attorney for Chase in the Massachusetts suit, states that the attornejrs for the plaintiff in that case understood that the defense was that Chase had not been served and that Whiting’s
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appearance for him was unauthorized, and that the attorneys for Vilas informed him that they were non-suited because they could not induce Page to go to Boston to testify in that case; and there is no denial of these facts. In 1883, after the judgment of the special term in this action had been affirmed by the general term, Whiting wrote to Chase, asking him if he desired an appeal on his behalf to be taken to the Court of Appeals, and Chase replied that he did not recognize the right or authority of Whiting to appear for him in the action, and therefore did not wish any appeal to be taken for him. The moving affidavits charge, upon facts stated in connection therewith, that both Vilas, and the Delaware & Hudson Canal Company were informed soon after the judgment was rendered at special term that Chase claimed that he was never served, nor authorized any appearance in the action, and the opposing affidavits make no averment or denial on the subject. The judgment of the Court of Appeals, was rendered in October, 1887. Subsequently the-Delaware & Hudson Canal Company, the lessee of the-property charged with the lien, paid the amount thereof and took from the plaintiffs an assignment of the judgment against Chase, “ upon the assumption,” as stated in the affidavit of their attorney, “ that it might recover back (the amount paid) from George B. Chase under the judgment of the general term.” It appears that both Page and Whiting died in 1885. Page was insolvent, and the estate of Whiting was insufficient to' respond in damages to the amount of the judgment, against Chase. This proceeding was commenced in-January 1888.
Both motions were heard and decided together.
The special term denied the motions holding (x) that the reversal of the judgments against Page and Butler by the Court of Appeals, did not operate to reverse them as against Chase, and (2) that the law gave relief
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by motion in the action when the attorney is insolvent, only when the motion is made without unnecessary delay ; that Chase should have moved when he learned of the unauthorized appearance pending the appeal, to. the general term, and that his delay in moving until nearly seven years after, and allowing the appeal to be heard as if by his authority, and then waiting until the-death of Page and Whiting, operated as a ratification of the attorney’s appearance.
The general term, upon appeal by Chase and Whiting’s executrix, affirmed the orders, holding with the court below that in view of the laches of Chase and of the death of Page and Whiting, Chase should not have such remedy by special motion, but should be left to-his action, in which he could be cross-examined, should he testify.
The court also overruled the claim that the judgment was joint and its reversal as to Chase’s co-defendants reversed it as to him, saying that such ground was. not specified in the notice of motion, and he was not in court except to object that there was no valid judgment, so that a decision on that question would not be.binding.
From the orders of the general term, the defendant,. Chase, and the executrix of Whiting took these appeals.
Peter. B. Olney, for the appellants.
The proper remedy is by motion, not by action. (Brown v. Nichols, 42 N. Y. 31 ; Ellsworth v. Campbell, 31 Barb. 135 ; Blodget v. Conklin, 9 How. Pr. 442 ; Denton v. Noyes, 6 Johns, 295 ; Ferguson v. Crawford, 70 N. Y. 256 ; Sperry v. Reynolds, 65 Id. 183). This court has the power to and should reverse the orders, appealed from because Chase as matter of right is. entitled to the relief he seeks. He was a non-resident. The courts hold that in an action brought here on a foreign judgment, defendant may prove that he was.
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never served with process in the foreign jurisdiction, and that he never authorized an attorney there to appear for him, and such proof will be fatal tó the foreign judgment (See Borden v. Fitch, 15 Johns. 121 ; Starbuck v. Murray, 5 Wend, 148 ; Kerr v. Kerr, 41 N. Y. 272 ; Hoffman v. Hoffman, 46 Id. 30 ; Kinnier v. Kinnier, 45 Id. 535, 541), and cases cited. Though our ■courts may enforce the rule in Denton, v. Noyes as against residents of this" State, they do not and ought not to enforce such rule against non-residents (Nordlinger v. De Mier, 54 Hun. 276 . See also Bordutha v. Goodrich, 3 Gray, 508 ; Gilman v. Gilman, 126 Mass. 26 ; Wright v. Andrenes, 130 Id. 149 ). The rule in Denton v. Noyes has been applied in no case to a nonresident. In the following cases, the defendants were in fact residents (Hamilton v. Wright, 37 N. Y. 502 ; Brown v. Nichols, supra; Meacham v. Dudley, 6 Wend. 515 ; Gazebrook v. McCreedie, 9 Id. 437; Ellsworth v. Campbell, supra; Allen v. Stone, 10 Barb. 547 ). "The denial by the court below of Chase’s motion was .an abuse of its discretion, and it is the right and duty ■of this court to correct such abuse, notwithstanding it is-said in Vanderbilt v. Schreger, 81 N. Y. 648 , that whether the power of the supreme court to set aside judgments “ shall be exercised in any case rests in its discretion, with the exercise of which this court will not ordinarily interfere.”
The judgment is a joint judgment based solely on a joint liability, and when reversed on appeal of the two joint judgment debtors, it is gone for every purpose (Harmon v. Brotherson, 1 Denio, 540 ; Geraud v. Stagg, 10 How. Pr. 373 ; Hawk v. Bishop, 10 Hun. 509 ; Pallock v. Webster, 16 Id. 105). The entirety of •a joint liability and of a judgment thereon is recognized in the following cases (McIntosh v. Ensign, 23 N. Y. 172 ; Perry v. Chester,53 Id. 242 ; Brown v. Richardson, 4 Robt. 604; Clason v. Morris, 10 Johns, 524 ;
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Fraw v. DeLaVega, 15 Wall, 552 ; Wright v. Andrews,, 130 Mass. 140 ).
Mere delay is not such laches as to defeat this, motion. A void act is not waived by delay (Granger v. Schwarz, 11 N. Y. Leg. Obs. 346 ; Johnson v. Bloomer, 3 Edw. Ch. 328 ). The objection of laches will not be readily listened to where there has been na material' change in the situation of the parties growing out of the delay (Platt v. Platt, 50 N. Y. 646 ).

We understand that it has become the settled practice in this State that relief against a judgment rendered against a' party upon the unauthorized appearance of an attorney in his name, is. to be sought on a direct application to the court by motion in the action in which the unauthorized appearance was entered. This was the remedy adopted in the leading case of Denton v. Noyes ( 6 Johns. 297 ), and in every subsequent case of a like character in this State which has come to our notice (Grayback v. McCredie, 9 Wend. 437 ; Adams v. Gilbert Id. 499 ; Campbell v. Bristol, 19 Id. 101; American Ins. Co. v. Oakley, 9 Paige 496 ; Hamilton v. Wright, 36 N. Y. 502 ).

In Brown v. Nichols ( 42 N. Y. 31 ), which was the case of a creditor’s bill founded on a judgment rendered against the defendant’s intestate, the defendant sought to impeach the judgment by proof that the defendant was not served with process, and that an appearance entered for him in the action by an attorney was unauthorized. The court overruled the defense, holding that the authority of the attorney to appear could not be questioned collaterally, but pointed out the remedy, Earl, J., saying: “ I think a party should always seek relief for an unauthorized appearance in the suit in which it has been put in, where the rights and equities of all parties can be best protected.” In Ferguson v. Crawford ( 70 N. Y. 256 ), Rapallo, J., refer

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ring to the rule established in Denton v. Noyes, and to the cases following it, said: “ For reasons of public policy the court holds the appearance good, leaving the aggrieved party to his action for damages against the attorney, granting relief against the judgment only in a direct application ” (See also, Sperry v. Reynolds, 65 N. Y. 183 ).

The jurisdiction of a court of equity to set aside a judgment at law obtained by fraud or on other grounds of equitable cognizance has been often asserted and is unquestioned, and it is not necessary now to deny that under special circumstances where the question of the unauthorized appearance is complicated with fraud, or the rights of purchasers, or the circumstances are such that the court can see that the right to or measure of relief cannot properly be determined on motion, having regard to all interests affected, resort may be had to a bill in equity or now in this State to an equitable •action.

There are several cases in other courts where jurisdiction in equity by original bill to set aside a judg- " ment entered on an unauthorized appearance by ■attorney, has been entertained. But all of them are marked by peculiar and special features such as those to which we have adverted (Shelton v. Tiffin, 6 How. U. S. 163 ; Harshay v. Blackman, 20 Iowa, 161 ; Wiley v. Pratt, 23 Ind. 628 ). In Cutchfield v. Porter ( 3 Ohio 518 ), the supreme court of Ohio dismissed a bill filed for relief against a judgment rendered on an appearance of •an. attorney, without authority, on the express ground that the remedy should be sought by application to the ■court in which the judgment was rendered. It seems to us that upon considerations both of principle and policy, relief, except in special cases, should be sought by motion in the action. It is the established rule where courts of law and equity are separated, that

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equity will not grant its aid where there is a plain and adequate remedy at law.

Under our system of procedure relief on motion is administered upon equitable as well as legal principles. In ordinary cases where relief is sought against a judgment, on the ground that the appearance of an attorney was unauthorized, the rights of the parties can be as fully presented and as carefully adjudged on a motion as in an action. If the facts are controverted and the court is not satisfied upon the affidavits and papers presented as to what the real facts are, it may refer the matter for the purpose of talcing further evidence and may require the parties to submit to an oral examination or cross examination. {Code Civ. Pro. § 1015). The court on a motion possesses indeed all the substantial powers in conducting an investigation which formerly appertained to the Chancellor. The remedy by motion is more convenient, prompt and less expensive than by action. The unbroken practice, which seems to have prevailed in this state, to seek relief in cases like this by motion and not by action, has almost the force of law, and ought we think to be followed unless special circumstances exist which may render that remedy inadequate or incomplete. No such special circumstances existed in the present case, and we are therefore of opinion, notwithstanding the observations of GROVER, J. in his dissenting opinion in Brown v. Nichols, that the order below cannot be sustained on the ground that it was discretionary with the court to remit the appellant to a remedy by action.

In disposing of this appeal it must, we think, be assumed, upon the papers presented on the motions, that the appellant Chase was neither served with process in the action nor authorized Mr. Whiting to appear for him, and also that he had no knowledge that such an action had been brought, nor any notice thereof mntil February 1881, after the rendition of the judg

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ment of the special term. These facts are especially and particularly alleged in the moving papers, and are in no respect controverted by the opposing affidavits. The other circumstances are also consistent with the claim made. Chase was a non-resident of the state during the whole period of the litigation. That he was never served with process is conceded. Mr. Whiting, on the occasion of the interview with Mr. Dabney, the attorney employed by Mr. Chase, after he had been notified of the judgment rendered against him, admitted that he was not retained by Mr. Chase personally, and that he appeared for him by direction of Mr. Page, one of the co-defendants. Mr. Chase did not know Mr. Whiting and never saw him prior to the rendition of the judgment. He swears that he had no knowledge that Vilas made any claim against him. He knew that Vilas claimed title to rolling stock of the Plattsburg & Montreal Railroad Company, which if established in the foreclosure action would, under the agreement between him and the receiver, be 'converted into a lien on the property. In the present action Vilas claimed that Page, Butler and Chase were jointly liable to him for the lien debt, but this claim was adjudicated adversely to him by the judgment of this court, Vilas v. Page ( 106 N. Y. 439 ). There is no suggestion that Vilas ever asserted any personal claim against Chase except by and through the complaint in this action. The relations between Chase and Page at the time of the alleged retainer by the latter of Whiting to appear for Chase were hostile and so continued. But Page had an interest, in case the claim of Vilas for a personal judgment against the individual defendants should be established, that Chase should be bound by the judgment. The Delaware & Hudson Canal Company (the real party opposing these motions) not only omitted to controvert any of the statements in the moving papers on the subject of the unauthorized appearance, but
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made no request for a reference to ascertain the facts,, nor that it might be afforded an opportunity to cross-examine Chase or the other affiants on the subject.

The main question of law respects the relief, if any, to which Chase is entitled against the judgment by reason of the unauthorized appearance of Mr. Whiting. It is obvious that the court acquired no jurisdiction to render a personal judgment against Chase, unless, the appearance, although unauthorized, conferred jurisdiction, or unless the authority of the attorney to* appear is conclusively presumed from the fact of the-appearance.' The case of Denton v. Noyes (supra) held that a domestic judgment rendered by a court of general jurisdiction against a party who had not been served with process, but for whom an attorney of the court had appeared, though without authority, was. neither void nor irregular. The doctrine of the prevailing opinion in that case encountered a vigorous opposition from one of the judges at the time, and it is not too much to say that the reasoning upon which it rests has been frequently criticised by judges and the justice of the rule denied. But it has been followed and must be regarded as the law of the State (Hamilton.. v. Wright, 37 N. Y. 502 ; Brown v. Nichols, 42 Id. 2).

The Courts in this State, while holding that strictly/ domestic judgments rendered against a party not/ served, but for whom an attorney appeared without; authority, cannot be assailed on this ground whea coming in question collaterally, nevertheless grant relief, on motion, either by setting aside the judgment absolutely, or by staying proceedings, and permitting theqparty to come in and defend the action. Where the. attorney is insolvent, the judgment will be absolutely vacated and set aside (Campbell v. Bristol, 19 Wend. 101 ). In other cases the proceedings will be stayed and the party permitted to come in and defend. The latter relief was granted in Denton v. Noyes (supra)..

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In the present case no reliéf whatever was granted, but the application therefor was denied absolutely. Even if the judgment against Chase is governed by the rule established in Denton v. Noyes (which, for reasons which will be stated, does not, we think, apply), then it would seem that the Court erred in denying relief. It is shown by the affidavit of the son of Mr. Whiting, which is uncontradicted, that his father’s estate, at the time of his death in 1885, was entirely inadequate to pajr the amount of the judgment against Chase. It is not expressly shown what the pecuniary condition of Mr. Whiting was in 1881, when the judgment against Chase was entered. But assuming that Mr. Whiting had sufficient pecuniary ability "at that time to respond in damages for the amount of the judgment, that, we think, is not controlling, to prevent relief on an application made after he became insolvent, provided it was made before the rights of the party procuring the judgment had changed to his prejudice. The party .against whom the judgment was rendered would still be entitled, we think, to appljr for and obtain relief by the vacation of the judgment. The plaintiff has no equity which entitles him to claim that the party injured should have been prompt to pursue and obtain a remedy by action against the attorney for damages and thereby enable the plaintiff to have the benefit of the judgment. Moreover, the judgment of the court in the (106 N. Y.) present action, conclusively determined as between the plaintiff and the defendants Page and Butler, that the latter had never assumed any personal obligation for the lien debt. If this judgment was not technically an estoppel of record as to the same question arising between the plaintiffs and Chase, on the ground that he was not a party to the appeal, nevertheless it furnished a strong reason for granting his absolute and final relief on this application, even if the estate of Mr. Whiting was insol
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vent, instead of granting limited relief by a stay of proceedings merely with a right to come in and defend the action, thereby subjecting Chase to the trouble and expense of a new trial which could have but one result.

We have so far considered the case upon the assumption that it is governed by Denton v. Noyes and the •cases following it. But we are of the opinion that a radi•cal distinction exists between the cases hitherto decided •and the present one, which prevents the application of the principle, that in the case of a domestic judgment ..strictly, a party not served, but for whom an unauthorized appearance was entered by an attorney, cannot on these grounds assail the judgment for want of jurisdiction. The distinction adverted to lies in the fact that in the cases hitherto decided in this State arising on domestic judgments, the judgment rendered was against a citizen of the State, who was within the jurisdiction, while in the present case the defendant in the judgment was at all times a non-resident and out of the jurisdiction. It is well settled that in an action brought in our courts on a judgment of a court of a sister State, the jurisdiction of the court to render the judgment may be assailed by proof that the defendant was not served and did not appear in the action, or where an appearance was entered by an attorney, that the appearance was unauthorized, and this even where the proof directly contradicts the record (Steinbach v. Murray, 5 Wend. 148 ; Steinway v. Stillman, 6 Id. 447; Kerr v. Kerr, 41 N. Y. 272 ; Rapello, J., Ferguson v. Crawford, 70 Id. 257).

The same rule is held elsewhere, and is in consonance with the constitutional obligation under the Constitution of the United States as to the faith and credit to be given by one State to the judgments of other States (Gilman v. Gilman, 126 Mass. 126 ; Wright

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v. Andrews, 131 Id. 149 ; Thompson v. Whitman, 18 Wall. 457 ; Knowles v. Gas Light Co., 19 Id. 58).

There is undoubtedly a logical difficulty in applying a different rule, as our courts do, in an action upon a domestic judgment where the only thing giving color of jurisdiction over the person is an unauthorized appearance by an attorney. The different rule in the two cases has been supposed to rest on the unreasonableness of compelling a party against whom judgment has been rendered in another State on an unauthorized appearance by an attorney to go to the foreign jurisdiction to attack it (See Dillon, J., in Harshay v. Blackman, 20 Iowa. 161 ). The same reason, in justice would seem to apply in case of domestic judgment against a non-resident of the State, and besides it may be said that a non-resident, not served with process and for whom an unauthorized appearance had been entered in the foreign jurisdiction, would be much less, likely to become apprised of the pendency of the action than if he had been a resident.

In Nordlinger v. DeNier ( 54 Hun, 276 ), the general term of the supreme court in the first department, BARRETT, J. writing the opinion, set aside an unauthorized appearance entered for a non-resident defendant on the precise ground that the rule in Denton v. Noyes did not apply in such a case.

Bodurtha v. Goodrich ( 3 Gray, 508 ), was the case of an unauthorized appearance by an attorney for Bodurtha, a non-resident of Massachusetts, in an action brought in the latter State. The court reversed the judgment on writ of error, Shaw, Ch. J., saying: “ It would certainly be very strange if an inhabitant of another State could thus be bound by a judgment given and recorded by a court having no jurisdiction, without any act or default of such party.” In Wiley v. Pratt, ( 23 Ind. 629 ) the court, in a case of a domestic judgment where the party had not been served, but for whom an

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unauthorized appearance had been entered, adopted substantially the English rule as announced in Bagley v. Buckland (1. Welsby H. & N. 1) that where a defendant had been served and an unauthorized -appearance entered, the judgment would not be set aside, but if he had not been served it would be. Ray, C. J., after stating what he conceived to be the true •rule, but excepting from it the case of a domestic judgment against a- non-resident not within the jurisdiction, said: “ Where the defendant has not been within the jurisdiction of the court it would not be just to comp él him to come under that jurisdiction, and establish his defense to the action in order to claim relief from a judgment obtained without notice, and therefore the relief here must be absolute immunity from the judgment.

We are bound under our decisions to follow the , doctrine of Denton v. Noyes in cases where it is strictly applicable. It is as to such cases stare decisis. But we are not disposed to extend the doctrine of that case to cases fairly and reasonably distinguishable, and the fact that a defendant against whom a judgment has been obtained here, upon an unauthorized appearance by an attorney, and who was not served, was a non-resident during the pendency of the proceedings, does, we think, constitute such a distinction .as renders the rule in that case inapplicable.

Upon the point made by the Delaware & Hudson Canal Company that the defendant Chase is precluded from relief by his laches, but little need to be said. The Delaware and Hudson Canal Company acquired its interest in the property of the Plattsburgh & Montreal Railroad Company in 1872. It took from Page his individual guaranty against the claim of third persons on the property including the claim of Vilas. Neither Butler or Chase were parties to the guaranty. In 1881, soon after the judgment against Chase was

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rendered, it was appraised of his claim that he had not. been served in the action and that the appearance of Whiting was unauthorized. When Vilas sued Chase on the judgment in Massachusetts, the latter promptly-disavowed the jurisdiction of the court to render the. judgment. Vilas, after the lapse of about two years, suffered a non-suit, inferably because he was unable to. establish the jurisdiction, and he took no further proceedings to collect the judgment, but after the final decision in this court he assigned the judgment against Chase to the Delaware and Hudson Canal Company,, on being paid the amount of the lien adjudged in the action, against the property in the possession of that company. The company took the assignment with full, notice of the equities of Chase. The delay of Chase, has not, so far as appears, changed the situation of either Vilas or the Delaware & Hudson Canal Company to the prejudice of either, and under such circumstances, the plea of laches, as was said in Platt v. Platt ( 58 N. Y. 646 ), will not be readily listened to, and ought not we think, to be listened to in this case to uphold, a judgment which, as was held by this court on the appeal of the co-defendants of Chase, standing in the same position with him, had no legal foundation.

We think the motions in this case should have been, granted, and the judgment and appearance vacated.

The orders of the special and general terms should, therefore, be reversed, and the motions granted, with, costs.

All concurred.

Note on Compelling an Att'orney to Disclose his. Authority to Appear, and his Client’s Address or Instructions.

The decision in the text goes far to remove the -burden, which the rule in Denton v. Noyes has laid on suitors entangled in a question of disputed authority of attorney, and establishes a rule more in harmony with the now-

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settled basis of the law as to the relative effect of judgments of courts of different states.

The question of the power of the court to compel a disclosure of the attorney’s authority has recently been more fully recognized than before ; and it may now be deemed settled, I think, that a party may challenge the authority of the attorney for the adverse party to appear for that party, if he can make a prima facie case of want of authority.

In respect to requiring a disclosure of the address of an adverse party the power is also now fully recognized. In equity the bill must state complainant’s description and place of abode (i Dan. Ch. Pr. 357). Uuder the Code the court may require disclosure, not only where there is suspicious, concealment as to who is the adversary, but also by a necessity of justice, where the applicant has obtained an order in the cause, or has process, which it is necessary to his case to serve personally on the adverse party, and shows also inability to make such service, and that the attorney on request for information as to the whereabouts of his client, for the purpose of enabling the applicant to make such service, refuses to disclose it. If the attorney makes satisfactory affidavit that he is ignorant of it, the court will not make ah order against him; but if his affidavit is evasive, may order a reference to ascertain the fact.

In either case, if there is good reason to believe that concealment to evade service is practiced, the court may justly stay the proceedings of the party whose address is sought until disclosure be made, and where such party is merely standing on the defensive so that a stay would be futile, there seems to be no good reason why on the principle in Walker v. Walker ( 8 Abb. N. C. 436 ; s. c., 82 N. Y. 250 ; aff’g 20 Him, 400), the court might not in some cases at least, strike out his pleading and leave him in default.

The proper practice to procure disclosure of address is first to obtain the order or process desired to be served, and make diligent effort to serve it. Then to apply to the attorney with a request for the address, stating the object of asking it. Upon his refusal, to apply to the court or a judge on affidavits, and ask an order that the attorney disclose the address, or show cause why he should not disclose it, or the proceedings on the part of the client'be stayed, etc., and for general relief; and a stay can be asked pending the motion.

I

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Notes of cases.

1. Disclosure of authority on motionl\ The leading case is the Ninety-nine plaintiffs v. Vanderbilt, 1 Abb. Pr. 193 .

2. The most recent case is Hollins v. St. Louis & Chic. R. Co. 25 Abb. N. C. 93 , where it was—held, that if the plaintiffs moving affidavits are sufficient to prove that the attorney appearing for the defendant may not be authorized to appear- for it in the action, the control which the court has over the attorney whose officer he is, will authorize it to solve the doubt by requiring him to exhibit, or in some other authentic manner disclose, the evidence of his authority.

3. Norberg v. Heineman, 59 Mich. 210 . In a suit in a justice’s court, an attorney of the circuit court appeared for one of the defendants, a corporation, and no question was raised as to his authority ; but on appeal by the co-defendants, in the circuit court, they demanded fiis authority to appear; but the court refused to compel him to produce it. But he afterwards produced a paper authorizing him to appear for the corporation in all suits in justice’s courts.—Held, the court did not err in its refusal.

Morse J., delivering the opinion, said : “ We know of no rule, statute or authority requiring attorneys in the circuit court, upon •demand of the opposite party, to affirmatively establish their power to act for the client in whose behalf they have entered appearance in due form. We also think the authority shown by him sufficient to authorize his appearance in justice’s court, and to follow the case upon -appeal into the circuit.”

4. Commissioners of Excise v. Purdy, 13 Abb. Pr. 434 ; s. c., 22 How, Pr. 312 . Where an action was brought under a statute providing that if certain officers do not sue to recover a penalty, a private person may recover it in their names,—held, that the objection that •those engaged in the prosecution were not authorized to bring the .action could not be raised as a matter of right by the defendant, although the court in its discretion might inquire into the authority • of the plaintiff’s attorney. Order dismissing complaint on affidavits ■'before trial, reversed.

5. In a suit on a dormant judgment, defendant filed a written •motion to compel plaintiff’s attorney to show his authority, and the .attorney without answering the motion in writing, offered proof of his authority,—held proper to receive it notwithstanding objection, .although Tex. Rev. St. Art. 37, requires such a.motion to be in writing «under oath ; for there is no requirement that the attorney shall file a

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•written answer before he will be heard to prove his authority in response to the motion and notice. Bridges v. Samuelson, 73 Tex, 522 .

6. If the evidence of authority produced by an attorney when required under the statutes in an action of ejectment, is not satisfactory, the remedy is by appeal; and a motion to dismiss the complaint on this ground should not be granted if no appeal is taken. Carpenter v. Allen, 45 Super. Ct. 322.

7. Strean v. Lloyd (Ill.), 21 N. E. Rep. 533 .—Held, that under 111. Rev. St. 1874, p. 445, § 16, providing that any written recognition of the authority of an attorney to commence a suit, duly proved, as provided therein, shall be sufficient presumptive evidence of such authority—such written recognition is presumptive evidence not merely that there was authority, but that authority existed to begin the suit at the time it was begun ; and held, that a motion to dismiss, where written recognition was produced, was properly overruled.

8. Valle v. Picton, 91 Mo. 207 , (rev’g 16 Mo. App. 178 , but confirming this point). In a suit on notes, and for money had and received, defendant filed a motion to dismiss, for lack of authority, accompanied by an affidavit of defendant that “ he had good reason to believe, and does believe, and does so aver,” that the cause was begun without plaintiff’s authority.—Held, properly overruled, as affi.ant’s belief could not overcome the presumption arising from the professional obligation of the attorney.

9. Allegations in an answer on information and belief, that the suit is without plaintiff’s authority or knowledge,—held, no defense, and not sufficient to cause an inquiry into the attorney’s authority. The court says: “We do not wish to be understood as holding that upon a proper •showing, and in a proper way, the right of an attorney to bring an •action may not be questioned, and a cause dismissed for want of authority in the attorney to represent the party; and while warrants of attorney have been dispensed with in this State, yet, upon a suitable showing of facts, the attorney may be required to exhibit some •authority for his appearance. The question cannot be raised in the manner attempted in this answer.” Robinson v. Robinson, 32 Mo. App. 88 .

10. Under Ind. Rev. St. § 970, the court or judge may, on motion, ■or without motion, on showing reasonable grounds, require an attorney to prove his authority.—Held, that where a party made no attempt to compel such disclosure at the proper time, the attorney’s authority was to be presumed, and could not be controverted on the trial by

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evidence outside the issues, and that the court properly excluded such, evidence. Indianapolis B. & W. R. Co. v. Maddy, 103 Ind, 200 .

11. County of San Luis Obispo v. Hendricks (Cal. 1886), 11 Pac. Rep. 382 . In an action by a county to recover the amount of a license-under an ordinance that provided that “ the tax collector may direct suits,” etc., the complaint need not aver that the tax collector had directed the suit. So held, on appeal from judgment. The court says: “ The objection goes not to the absence of any fact constituting the cause of action, but rather to the authority to bring the suit for want, of authorization from the tax collector.”

The action is instituted by the district attorney of the county—an. attorney at law and an officer of the court. It is not necessary to state in -the complaint that he was directed to bring the action. An attorn ey at law is presumed to be authorized by the proper party to institute the action he brings until the contrary is made to appear.”

Striking out an appearance already made in a United States District Court, was held to recall the notice to the defendant, and make subsequent proceedings against him inoperative, in Windsor v. McVeigh, 93 U. S. 274 .

12. Disclosure of client's address.] Where there are no circumstances indicating fraud, and no evidence of bad character discrediting-the appearance, a respectable and responsible attorney will not be required to disclose the address of his'client. Supm. Ct. Sp. T. 1880. Friedberg v. Bates, 3 Month. L. Bul. 6.

13. An application to compel disclosure of client’s address will be denied, unless some specific object or reason be shown. N. Y. Super. Ct. Sp. T. 1879, Corbett v. De Comeau, 1 Month. L. Bul. 30.

14. It is the duty of an attorney, as an officer of the court, to furnish the address of his client when the court orders it, as, for example,, on the adversary’s application, for the purpose of enabling him to serve an injunction. Where the attorney answered falsely or evasively,— held, proper to charge him personally with the costs of the reference had to take testimony as to the whereabouts of the client. Supm. Ct. 1885, Bauer v. Betz, 7 Civ. Pro. R. 233, s. c., 1 How. Pr. N. S. 344.

15. After termination of an action by judgment for defendant, and on affirmance on appeal, plaintiff’s attorney cannot be compelled to disclose his late’s client’s whereabouts. So held, on motion to compel disclosure of the plaintiff’s address. N. Y. City Ct. Sp. T. 1889, Walton v. Fairchild, 4 N. Y. Supp. 552 .

16. As to compelling attorney to disclose address, see also, 2 Abb. New Pr. & F. 500.

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17. Thatcher v. D’Aguilar, 11 Ex. 436. In a breach of promise-suit, before the trial, defendant’s attorney made an affidavit to the, effect that he had received a letter from plaintiff saying that she had instructed her attorney to withdraw the proceedings, and obtained hereon a rule against plaintiff’s attorney to show cause.—Held, the rule must be discharged, because the plaintiff herself was not before, the court.

Parke, B.: “ The attorney in a court of law is not like a proctor in the ecclesiastical courts, the dominas litis, but he is the mere agent of the suitor. We ought not, therefore, to stay the proceedings without having the plaintiff before the court.”

18. Disclosure of client’s instructions.] Where the attorney, in an execution, refused to state to mortgagees of the goods sold whether-he directed the sale of particular chattels by instruction of his client,, and challenged a suit against himself.—Held, proper to charge, in a suit against him by the mortgagees that he was estopped from denying" that he acted on his individual responsibility. Ford v. Williams, 24. N. Y. 359.

II. Forms.

I. Cancelling appearance.

In Nordlinger v. De Mier, 54 Hun, 276 ; s. c., 18 Civ. Pro. R. 47 ; 27 State Rep. 16; 7 N. Y. Supp. 463 , the defendants were sued as general partners. The summons was served upon Paraga, only. He-sent the summons to responsible attorneys of the court, who appeared for all the defendants in entire good faith, believing that Paraga was. authorized to retain them for all the defendants. One of the defendants not served but thus appeared for, now moved, appearing specially for the purpose, by another attorney, for an- order that the notice of appearance of the first attorneys as attorneys for the defendant De Mier in this action, be cancelled, and all proceedings taken herein on behalf of said defendant be vacated and set aside.

The attorneys who had thus appeared under misapprehension consented, but the plaintiff resisted the motion. The court at special term refused to grant the motion, but in the order denying it, added “it is further ordered that said defendant De Mier, may within twenty-one days from the service of a copy of this order on his present attorneys, and also on said [names of attor7ieys who first appeared], substitute said, \71a771es of prese7it attorneys] for \1ia17tes of attorneys who hadfirst appeared], as his attorneys in this action, and that said defendant may within the same time serve an amended answer to the complaint, the-date of issue to remain as of original date, and the cause to remain on the general calendar of this court. “ On appeal the court at general,

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term held that the defendant was entitled to have his motion granted unconditionally, and there was error to require him to enter substituted appearance.

2. Disclosure of Address.

Clause in affidavit 'on motion for injunction, on •which to ask directiojt that attorney disclose his client's address.

This and the two following forms are sustained by Baur v. Betz 1 How. Pr. N. S. 344; s. c., 7 Civ. Pro. R. 233; aff’d, it seems, but without opinion in 99 N. Y. 672 .

I. That I am an attorney and counsellor at law, etc.

II. On the day of 18 , I called upon H. D., the attorney for the plaintiff, and requested information from him as to the whereabouts of said plaintiff, but D. informed me that he was not at liberty to give the information desired without the consent of his •client, and that his client declined to give such consent.

III. I have caused diligent search to be made for said plaintiff, •but have been unable to ascertain his whereabouts, although I am convinced from the result of my inquiries that he is hiding somewhere in the city of New York. He has not visited his place of business since the day of 18 , nor has he since that time been with, •or visited his family as far as I have been able to learn.

Clause in injunction order requiring attorney to show cattse why .he should not disclose his client's address.

It IS FURTHER ordered that H. D. show cause, at the time and -place aforesaid, why he should not disclose to the attorney for the defendant the present residence or abode of the plaintiff, so that a copy of this order may be served upon the said plaintiff.

Clause'in injunction order appointing referee to take testimony to «ascertain the whereabouts of a party to be served.

It is further ordered: I. That it be referred to R. F„ Esq., counsellor at law, to take proof as to the present residence or abode of the plaintiff, and as to his whereabouts, and to take testimony as to the transactions between said plaintiff and H. D., and between said plaintiff and any other person, with a view of ascertaining the fact as to where the plaintiff can be found. And said referee is hereby ■empowered to subpoena witnesses with a view of ascertaining the above mentioned facts, and to examine such witnesses as may be produced before him in respect to such fact or such other facts contained 'in the affidavits submitted on this motion, as he may deem proper.

II. That the said reference shall proceed from day to day until •completed, and that the same shall be commenced at o’clock in the on , the day of , 18 , and shall continue until •o’clock in the afternoon of that day, and between the same hours of

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each succeeding day until the taking of the testimony shall be completed, unless the referee for cause otherwise direct.

III. That said referee thereupon forthwith report to the court the testimony by him taken, together with his opinion thereon,

IV. Notice to the plaintiff’s attorney of one day of the hearing-before said referee shall be deemed sufficient.

The making of the order was resisted on an affidavit claiming privilege by the following allegations: [This claim of privilege the decision of the court overruled.]

That the plaintiff’s residence was formerly at No. , Street,, this city, but I am informed that his residence is now at No. , Street, this city, and I am further informed that these facts are well' known to the defendant.

I further aver that all the rest of the information as to the whereabouts of plaintiff has been received by me from him in my relation to the plaintiff as his attorney and counsel herein, and was so given me by the plaintiff in the course of my professional employment by him as his attorney and counsel in this action, and the information thus, received from the plaintiff is a privileged communication, and it would be breach of my professional duty to the plaintiff, to disclose said communication.

Cases cited