Louth v. Woodard

*607 BEAN, J. — This case depends upon the validity of a former decree of the Circuit Court of the State of Oregon for Multnomah County. It appears from the testimony that after the commencement of the former suit in which Loring K. Adams and Boger B. Sinnott were attorneys for David Louth, plaintiff therein, and some two or three months before the trial thereof, the defendant, Alton M. Woodard, about August, 1917, went to the office of the attorneys for David Louth and inquired in regard to the suit and also made inquiry in regard to the standing of George J. Cameron, who had before that time been employed by Morrell Woodard, the father of this defendant, to appear in the case. He also indicated that he would be present at the trial. Summons and complaint had been served upon Morrell Woodard, the father, but they were unable at the time to find the defendant Alton M. Woodard, in order to get service, and as George J. Cameron appeared in the suit for Alton M. Woodard no further attempt was made to obtain service of the summons and complaint. It appears that, after being informed of the pendency of the former suit, Alton M. Woodard went to California and did not return at the trial of the former suit. He allowed the matter to slumber for nearly four years when he filed for record some declaration of interest, which clouded the title' and caused the present suit. Alton M. Woodard now claims that he had expended $1,200 toward the construction of a house upon one of the lots, taken in the name of Morrell Woodard and Alton M. Woodard, which in truth belonged to David Louth. *608 Upon the trial of the present ease, speaking in regard to the trial of the former suit, to a question by the court— “"Well, wouldn’t it be necessary for you to then make some showing that you had some interest in it and that it was not all David’s; didn’t you understand that? “A. Well, I understood it, and I intended to come back here, and would have, at the time they told me to come, if I could have got here. I was flat on my back and broke; couldn’t get out of bed.” The appearance of an attorney in a suit or action for a party is prima facie evidence of his authority. In the case of State ex. rel. v. Estes, 34 Or. 196, 201 (51 Pac. 77, 78), it is said: “An attorney, under the statute, is a public officer; and, when he appears in his official capacity, it will be presumed that it is with the requisite authority of the party whom he professes to represent, until the contrary is established. " His mere appearance in such capacity will be taken as prima facie evidence of his authority for so doing, and ordinarily the courts will seek no further for confirmation of such authority.” See Bonnifield et al. v. Thorp, 71 Fed. 924. Where an attorney appears in a suit or action for a party thereto, the authority assumed by such attorney at law to act for the party in the courts is valid until disapproved; not void until proved: 6 C. J. 631-633. If the defendant Alton M. Woodard knew that there was a case pending in which he was joined as defendant, as it appears that he did know, and he allowed the case to go to judgment without objection, as it appears that Alton M. Woodard allowed the former suit to go to judgment, it was a ratification of the act of his attorney appearing for him: Eurste *609 v. Hotaling, 20 Neb. 178 (29 N. W. 299, L. R. A. 1918B, 898); Oxtoby v. Henly, 112 Iowa, 697 (84 N. W. 942); Seale v. McLaughlin, 28 Cal. 668. The burden of proof was upon the defendant Alton M. Woodard to establish that the appearance in his behalf by George J. Cameron, an attorney who assumed to represent him in the original action, was not authorized. This burden the defendant has failed to bear: Rutledge v. Waldo, 94 Fed. 265; Aaron v. United States, 155 Fed. 833, 836 (C. C. A. 67). It appears from the record that Morrell Woodard, the father of this defendant, Alton M. Woodard, had employed George M. Cameron to look after the whole of the former case. Alton M. Woodard and his father had, shortly before that time, been partners in business. Morrell Woodard had apparent authority to authorize Judge Cameron to appear for all the defendants and look after the whole case. That suit was vigorously contested on behalf of the defendants therein. Alton- M. Woodard, by failing to promptly disavow the authority of George J. Cameron, as his attorney in the former suit, approved and ratified the act of such attorney and is bound by the result. Public policy requires a party who has been represented by an attorney, if such attorney is not authorized, to disavow and disaffirm his action promptly, upon receiving knowledge thereof. “If he doesn’t thus speak, when he ought to, the court will not hear him when he wants to.” Oxtoby v. Henly, 112 Iowa, 697, 700, 701 (84 N. W. 942). See, also, Anderson v. Crawford, 147 Ga. 455 (94 S. E. 574, L. R. A. 1918B, 894, and note 899); Harshey v. Blackmarr, 20 Iowa, 161, 168 (89 Am. Dec. 520); Weeks on Attorneys at Law (2 ed.), §§ 202, 203, p. 419. *610 Counsel for defendant suggests that under Section 1084, Or. L., if it he alleged by a party for whom an attorney appears that he does so without authority, and the allegation be verified by the affidavit of the party, the court may, if it find the allegation true at any stage of the proceedings, relieve the party for whom the attorney has assumed to appear from the consequences of his acts. This section of the Code would have been applicable if the defendant, Alton M. Woodard, had appeared in the original suit and challenged the authority of George J. Cameron to appear for him in that suit. The section has no application in a collateral attack made upon the decree in the original suit, about four years after the rendition of such decree. The decree of the lower court is affirmed. Affirmed. Rand, Burnett and Coshow, JJ., concur.