Sperry v. . Reynolds

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 181 The sole ground upon which defendant seeks a reversal of the judgment is, that it was not proved before the justice that Crandall was authorized to appear for him on the return day of the summons served by copy. Suits may be instituted before justices of the peace, either by the voluntary appearance and agreement of the parties or by process. Suits instituted upon process by summons are considered as commenced when the summons is delivered to a constable for service, and suits instituted without process, at the time when the parties join issue. (2 R.S., 228, §§ 11, *Page 182 12.) When a constable having a summons for service cannot find the defendant, he must serve the same "by leaving a copy thereof at the defendant's last place of abode, in the presence of some one of the family of suitable age and discretion, who shall be informed of its contents;" and after service, he must "return thereupon, in writing, the time and manner in which he executed the same, and sign his name thereto." (§§ 15, 16.) But mere service by copy does not give the justice jurisdiction of the person of the defendant, nor the right to try the action or render judgment therein. (2 R.S., 234, § 46; 2 Wait's Law and Pr., 55, 69, 72; 1 Cowen's Tr. [2d ed.], 504.) Here there was not even competent proof that the summons was ever properly served by copy. The only return signed by the constable was as follows: "Served, copy left the 9th day of February, 1869." The return does not state that the defendant could not be found. Such a return is insufficient to show a legal service, or to authorize the justice to proceed in the action in the absence of the defendant. (Bromley v. Smith, 2 Hill, 517; 2 Wait, 72; 1 Cow. Tr., 503, 504.) Hence the justice did not obtain jurisdiction of the defendant unless it was obtained by the voluntary appearance of the parties and joining issue; and the sole question to be determined is, whether, from what appears in the record, we can say that the parties did appear and join issue. In Justice's Courts there are no attorneys at law. All persons who appear there for parties are mere agents or attorneys in fact. The statute provides that any plaintiff or defendant, of lawful age, may appear in the suit by attorney. (2 R.S., 233, §§ 39, 41.) The authority to appear by attorney may be either written or verbal, and must in all cases be proved, unless admitted by the opposite party; and the justice must not permit any person to appear without such proof or admission. (§ 45.) This statute was not passed for the protection of a party for whom an attorney may appear, but for the protection of the opposite party, and hence that party can waive any proof of the attorney's authority. The plaintiffs *Page 183 did waive it in this case by not objecting to Crandall's authority to appear (Ackerman v. Finch, 15 Wend., 652), and hence they were concluded by his appearance. There is no statute requiring the justice to take any proof of the authority to appear, looking to the protection of the party for whom the appearance is made. His rights are left to rest upon a common-law basis. In courts of record which have attorneys it has been held, for reasons of convenience and public policy, that a party may be bound by an unuathorized appearance of a responsible attorney. In those courts the attorneys are licensed as such, and are authorized to appear and represent parties in the court. They are, in a certain sense, officers of the court, and, to a certain extent, are under the control of the courts, which can exercise a coercive power over them; and the courts can, in the action in which an unauthorized appearance has been put in, give a party such relief against it as he ought to have. (Denton v. Noyes, 6 J.R., 296; Hamilton v. Wright, 37 N.Y., 502; Brown v.Nichols, 42 id., 26.) But the principle of these cases cannot be applied to courts which have no attorneys, in which any person may appear for a party and which have not power to administer relief in the action which is possessed by courts of record. My opinion is, that in all cases where the jurisdiction of the justice depends upon the appearance of a party, the party may show that he did not appear, or that the appearance of any one for him was unauthorized, and that he may thus assail or defend against the judgment entered against him. This is upon the principle that a judgment rendered against a party, of whose person no jurisdiction was obtained, cannot be binding upon him. But while a party is not absolutely bound by an unauthorized appearance for him, the next question to be considered is, whether, when an appearance has been put in for a party in Justice's Court, it must be presumed to have been authorized. Such is undoubtedly the rule in courts of record which have attorneys. When an attorney appears there for a party the presumption is that he was authorized, and the party asserting that the appearance *Page 184 was unauthorized must show it if he claims any relief on that account. But this is so for reasons applicable to such courts only. In Osborn v. United States Bank (9 Wheat., 738) Chief Justice MARSHALL says, that the authority to appear must exist, "but its production has not been considered as indispensable. Certain gentlemen first licensed by government are admitted, by order of court, to stand at the bar with general capacity to represent all the suitors in the court. The appearance of any one of these gentlemen in a cause has always been received as evidence of his authority, and no additional evidence, so far as we are informed, has ever been required. This practice, we believe, has existed from the first establishment of our courts, and no departure from it has been made in those of any State or of the Union." These reasons are not applicable to the case of an appearance in Justice's Court by one acting as a mere agent or attorney in fact. Such an appearance must be governed by the general law of agency. If unauthorized, it does not bind the party; if authorized, the authority must appear. As said by Ch. J. MARSHALL in the case above cited: "No man has a right to appear as the attorney of another without the authority of that other. In ordinary cases the authority must be produced, because there is, in the nature of things, no prima facie evidence that one man is in fact the attorney of another." In all ordinary cases where one man is sought to be bound by the act of another who has assumed to act as his agent, the party seeking to hold him bound by such act must show the agency. We can perceive no reason for not applying the same rule to this case. The statute provides, that the parties may appear and join issue and thus confer jurisdiction; and hence, in such case the record must show that the parties did thus appear. What does this record show? It shows that the plaintiff appeared and that defendant did not appear in person, but that one Crandall appeared for him. The record shows no appearance by defendant without proof, in some form, that Crandall was authorized to represent him. This conclusion I believe to be in consonance with sound policy *Page 185 It can cause no practical inconvenience. The opposite party or the justice can always require proof of authority to appear for an absent party, and thus the record will show an authorized appearance. A different conclusion would impose upon an innocent party, for whom an attorney has made an unauthorized appearance, the uncertain remedy of a suit against the attorney, and would in all cases place upon him the burden of showing a negative that the appearance was not authorized and would subject him to the hazard of paying a judgment of which he knew nothing until an execution was presented for its collection. For the reason, therefore, that this record does not show an appearance of this defendant before the justice by an authorized attorney so as to give jurisdiction of his person, I favor a reversal of all the judgments below, with costs.