Sterne v. Bentley

Paige, Justice. It is objected by the counsel of Bentley, that the' statute in relation to proceedings against joint debtors, (2 R. S., 377,) where the process or declaration is served upon one of the Defendants only, is superseded by the code; and that no judgment under the code can be entered against any person, unless upon a personal service of the summons, or by publication, as prescribed in sections 113 and 114 of the code. This objection, I think, is not well founded. Section 115-of the code provides, where the action is against several defendants jointly indebted, and any one of them is actually served with the summons, that the Plaintiff may proceed against the Defendant served, in the same manner as he could have done previous to the adoption of the code, and with the like effect, unless the court shall otherwise direct. To proceed against the Defendant in the same manner as was done previous to the adoption of the code, is, to enter a judgment against all the Defendants, and to collect the execution out of the personal property of any Defendant not served with process, owned by him as a partner with the Defendants served, or with any of them, or out of the separate property of the Defendants served with process; but not to levy the execution on the sole property of any Defendant not served with process. That this is the true construction of the 1st subdivision of the 115th section is apparent from the 2d subdivision of that section, which provides, that in an action against Defendants severally liable, the Plaintiff may amend his complaint of course by striking out the names of the other Defendants, and may proceed against the Defendants served. This provision to strike out the names of the Defendants not served, and to proceed against the others, is not made applicable to the case of joint debtors. The proceeding as against them is thus left to be conducted in the manner prescribed by the Revised Statutes; § 328 (of the code,) merely provides in what manner the Plaintiff must proceed against a joint debtor not originally summoned in order to make the judgment binding upon him, in the same manner as if he had been originally summoned. (Sections 332 and 333.) I think an offer in writing to allow judgment to be taken against the Defendant signed by his attorney is a compliance with the 338th section of the code. It is equivalent to a signing by the Defendant himself. It seems that the attorney who appeared for the Defendants in this case had no authority from Bentley to appear for him. The attorney’s authority was wholly derived from McLaughlin. In Denton v. Noyes, 6 John., 296, where an attorney appeared for a Defendant, without authority, and confessed judgment, it was held that thejudgment was regular; but if there was any fraud or collusion between the Plaintiff and the 334 Defendant’s attorney, or if the attorney of the Defendant was irresponsible, the court would reheve against the judgment; and that the court in order to protect the Plaintiff from suffering by the act of the attorney, and at the same time save the Defendant from injury, will let the judgment stand, but stay all proceedings, and let in the Defendant to plead, if he has any defence. The rule laid down in Denton v. Noyes was followed in the case of Grazebrook v. McCreedie, &c., (9 Wend., 437,) a case precisely like the present. In that case a judgment was entered on a cognovit given by an attorney as the attorney of two partners when he was in fact employed by only one of them on whom alone a declaration had been served. (See 6 Wend., 514; 1Wend., 311.) In Hammond, &c., v. Harris, &c., 2 Howard’s Pr. Rep., 115, relief was denied because merits were not sworn to. In this case, fraud or collusion between the Plaintiff and the Defendant McLaughlin, or his attorney, is denied by the Plaintiff. And the allegations in Bentley’s affidavit of the dissolution of the partnership between him and McLaughlin, and that the execution had been levied on property which was not the partnership property of the Defendants are also denied. But it is conceded that Bentley never authorised the attorney to appear for him; and Bentley swears to merits. He is, therefore, entitled to the same relief as was granted in Denton v. Noyes, and in Grazebrook v. McCreedie. An order must be entered that the judgment, execution and levy stand as security, but that all proceedings under the same to be stayed until the 'further order of the court, so far as relates to the Defendant Bentley, or to his interest in the property levied upon; and that Bentley have leave within twenty days to appear and put in an answer to the complaint, to which the Plaintiff may reply; and if Bentley does not within twenty days put in his answer to the complaint, the Plaintiff to be at liberty to proceed with his execution under the judgment.