Hollins v. St. Louis & Chicago Railway Co.

The affidavits read in support of the motion are sufficient to prove that the attorney appearing for the defendant may not have been invested with lawful authority to represent it in the action; and, where that may be the fact, the control which the court has over the attorney, whose officer he is, will authorize it to solve the doubt by directing him to exhibit, or in some other authentic manner disclose, the evidence of his authority. This is no more than just to the party whose action he may contest, for he should not be subjected to either interference or expense by the intervention in the litigation of an attorney without power to represent the party in whose nominal behalf he assumes to act. The observance and enforcement of this rule on the part of the court will in a very great degree remove all cause for the conspicuous inconsistency which has found its way into the courts from the want of authority on the part of the attorney. As the law has been declared and now exists, an attorney may appear in the courts of this state for a party without even a semblance of authority for doing so, and subject him to a judgment whose enforcement he will be powerless to resist, (Hamilton v. Wright, 37 N. Y. 502 ; Brown v. Nichols, 42 N. Y. 26 ,) while, if that is done in another state, and the judgment is afterwards brought here for suit and enforcement, the fact that it has been recovered upon an appearance by an attorney without authority to represent the party for whom he appears will be permitted to avoid the judgment for want of jurisdiction over the person against whom it has been recovered, (Kerr v. Kerr, 41 N. Y. 272 .) There is no principle supporting this distinction; but the absence of authority to appear should be attended with the same result in each case. It is little less than absurd to hold a judgment recovered in this state on the appearance of an attorney to be conclusive, and a judgment recovered in the same manner in another state to be void for want of jurisdiction over the person, and a liberal exercise of the authority requiring the attorney to present proof of his power to represent a party to his adversary will have a beneficial effect in the way of correcting and removing this injustice. It was applied in a salutary manner in Nordlinger v. De Mier, 7 N. Y. Supp. 463 , and the probability proceeding from the affidavits produced will justify the application of the principle in this case. The order should be reversed, with $10 costs and the disbursements, and an order made requiring the attorney appearing for the defendant to furnish within 10 days after notice of this decision proof of his authority to appear as attorney for the defendant in this action, or, in default thereof, that his notice of appearance and any other paper served by him be stricken from the record. All concur.