Fanning v. Trowbridge — 5 Hill & Den. 428

Majority

p. 428

Fanning vs. Trowbridge.

Headnote

A justice has no right to allow an appearance by attorney upon information re. ceived out of court as to the attorney’s authority. Per Bronson, J.

Accordingly, a justice having acted upon the oath nf the plaintiff’s attorney, taken in the absence of the defendant and before the hour at which he was summoned to appear ; held, erroneous. ,

Quere, whether an authority to appear for another in a justice’s court can be delegated by the attorney, unless the power of delegation be expressly conferred. See note (a).

Where, on the retain of a summons in a justice’s court, both parties appear, but the defendant refuses to join issue, no adjournment can take place without his consent. Though, after an irregular adjournment granted by a justice at the plaintiff’s request, the defendant appear at the adjourned day and answer to his name, but decline to take any part in the further proceedings, this "will not amount to a waiver of the irregularity.

Otherwise, however, if the defendant participate in the further proceedings by pleading in the cause, asking an adjournment, &e. Per Bronson, J.

Error to the Albany G. P. Trowbridge sued Fanning before a justice of the peace by summons returnable June 12th, 1840, at 10 A. M. One Gould appeared for the plaintiff and declared on an account. The defendant appeared in person, but refused to plead, and objected to the appearance of Gould. Gould was thereupon sworn, and testified that E. Worcester had that morning requested him to appear for the plaintiff and get the cause adjourned; Worcester saying that he had been employed by the plaintiff to attend, but was obliged to -leave. From the justice’s return to the certiorari, it appeared that Worcester called on him (the justice) that morning, before the hour mentioned in the summons, and was sworn as to his (Worcester’s) authority to appear, and testified that he had been employed by the plaintiff as his attorney, and that, being obliged to go to another place, he (Worcester) had employed Gould to appear for the plaintiff and get the suit adjourned. The justice informed the defendant of these facts, after Gould had been sworn as above mentioned ;■ adding, that he (the justice) was satisfied Gould was duly authorized to appear for the plaintiff. The justice then asked the defendant if he wished to

p. 429

plead, and he declined.' The cause was thereupon adjourned to the 19th of June, when the plaintiff appeared in person and stated that Worcester, who was present, was his attorney in the suit. The defendant “was also present and answered in the suit, and the court again enquired of the defendant if he wished to plead in the suit, which he declined.” The cause was then delayed a short time, “ when it was again called, and the parties answered. The plaintiff declared himself ready for trial. The defendant being also present, stated that he should not appear nor plead in the suit.” The plaintiff then went on ex -parte with his proofs, and the justice rendered judgment in his favor, which the C. P. affirmed on certiorari. The defendant thereupon sued out a writ of error.

A. Fanning, in person.

J. C. Yates, for the defendant in error.

The authority to appear by attorney in justices’ courts, when not admitted by the opposite party, must in all cases be proved, either by the attorney himself or by other competent testimony. (2 R. S. 233, § 45.) If an attorney may delegate his authority, there was no proof on the return day of the summons that Worcester had himself been employed.^[1] The examination of Worcester on oath before the hour had arrived or the defendant had appeared, was extrajudicial, and in judgment of law proved nothing. A justice cannot act upon information which he has received out of court in relation to the appointment of an attorney, even though the information come from the party for whom the attorney appears. (Beaver v. Van Every, 2 Cowen, 429.) The defen

(a) (a) Quere, however, whether the attorney’s authority can be delegated unless the power of delegation be expressly given. As to the general rule on this subject, see Com. Dig. tit. “Attorney” (C 3;) Story On Agency, 14, and, the cases there cited; 2 Kent’s Comm. 632; Commercial Bank of Lake Erie v. Norton, ( 1 Hill, 501 , 505, 6.)

p. 430

dant took the objection that Gould had no right to appear for the plaintiff, and it was never waived. The justice told the defendant what had been done out of court, and added, he was satisfied that Gould was duly authorized to appear for the plaintiff: This amounted to a decision of the question, and it was not necessary for the defendant to repeat his objection after it had been overruled. It is evident, however, that he did persist in it; for, on being again asked if he wished to plead, he declined, as he had at the first. The adjournment, which seems to have been granted on Gould’s motion, was without authority. And besides, if both parties did appear, issue should have been joined before granting an adjournment. (2 R. S. 233, § 47.) The adjournment was irregular, and the cause was out of court. (Kimball v. Mack, 10 Wend. 497 .)

The irregularity would have been waived, if the defendant had appeared at the adjourned day and gone to trial. (Tifft v. Culver, 3 Hill, 180 .) But although he was present and an swered to his name when called, he again declined to plead, and told the justice that ££ he should not appear nor plead in the suit;” and he took no part in what followed. There can be no waiver of such an irregularity, unless the party afterwards pleads, asks an adjournment, cross-examines the'plaintiff’s witness, ( 7 John. 381 ,) or in some other way litigates the cause. Merely being present to watch the progress of an irregular proceeding, or saying “ here” when his name is called, is not enough.

Judgment reversed.

Cases cited

Kimball v. Mack 10 Wend. 497 N.Y. Sup. Ct. p. 430