Sperry v. Reynolds

Balcom, J. The defendant’s counsel makes the point that the justice of the peace did not acquire jurisdiction of the defendant for three reasons: 1. The defendant did not appear before him; 2. The summons was served by copy only; 3. Crandall, who appeared for the defendant, did not, in any manner, prove his authority to appear for him. It is provided by statute that in a justices’ court “Every defendant in a suit, except persons under twenty-one years of age, may appear and defend the same in person, or by attorney ; but where a warrant shall have been served on a defendant and returned, no further proceedings shall be had against him until he shall have personally appeared in court.” (2 R. S., 232, § 41.) Further: “ The authority to appear by attorney may be either written or verbal, and shall, in all cases, be proved either by the attorney himself, or other competent testimony, unless admitted by the opposite party; and the justice shall not permit any person to appear as attorney for another without such proof or admission.” (Id., p. 233, § 45.) The plaintiff admitted the authority to appear of Crandall, who answered for the defendant, by not objecting to his right to appear, and by allowing him to answer his complaint without objection, and by agreeing with him upon an adjournment of the cause. (Acherman v. Finch, 15 Wend., 652.) The defendant’s counsel admits this would have been a good appearance tor the defendant, and would have conferred [409] jurisdiction of the defendant upon the justice if the summons had been personally served on him. But he insists that it was necessary for Crandall, who assumed to be the attorney of the defendant, to prove his authority to appear in the cause, for the reason that the summons was served only by copy. A summons may be served by copy. (2 R. S., 228, § 15.) The defendant may appear and answer on the return day of a summons thus served. (Id., § 18, subdivision 2; id., § 11; id., p. 233, § 47.) And the statute does not require an attorney, who appears for the defendant on the return day of a summons so served, to prove his authority to appear when it is admitted by the plaintiff. The plaintiff may admit the authority of the attorney, who appears for the defendant, when the summons has been served only by copy, as well as he can when it is personally served. The fifth ground of appeal to the County Court, in this case, is stated as follows, to wit: “ This appeal is founded on errors of fact to be established by affidavits, to be hereafter served, and on other proofs.” That was in conformity with a clause in section 366 of the Code. But the defendant did not make and serve any such affidavits, or offer any other proof in the County Court to show he did not authorize Crandall to appear for him, as his attorney, before the justice. If the defendant had offered such affidavits or other proof in the County Court, the plaintiff would have had an opportunity to prove that Crandall had authority to appear for the defendant before the justice. I am of the opinion the defendant had no other ground for appealing from the judgment of the justice than the alleged error of fact, which he should have proved in the County Court by affidavits, or by calling witnesses there, as he might have done in pursuance of section 366 of the Code. And the just inference is, if there was such an error of fact as is alleged in the defendant’s notice of appeal, he would have proved it in the County Court. The principle stated in Hurd v. Beeman (8 How., 254), [410] Fitch v. Devlin (15 Barb., 47), and other cases, shows that the defendant should have proved his alleged error of fact, if any there was, in the County Court. I think it is very clear that no error was committed by the justice in allowing Crandall to appear as attorney for the defendant without proving that he was authorized to appear for him; for the reason that the plaintiff did not require any such proof, and admitted his authority. For these reasons, I am of the opinion 'that the judgment of the County Court, affirming that of the justice, should be affirmed, with costs. Miller, P. J. The summons issued by the justice against the defendant was served by copy, and the defendant did not appear to answer it personally, but another person assumed to appear for him, who did not swear to or prove his authority. This is claimed to be error by the defendant’s counsel, and it is insisted that, by reason thereof, the justice did not acquire jurisdiction. By the Revised Statutes (vol. 2, p. 233, § 45): “ The authority to appear by attorney may be either written or verbal, and shall, in all cases, be proved either by the attorney himself, or other competent testimony, unless admitted by the opposite party; and the justice shall not admit any person to appear for another without such proof or admission.” It will be seen by a close perusal of this provision that the proof of authority may be waived by an admission of the “ opposite party.” The opposite party is under no obligation to object to the want of authority or to require proof of the same, and, by failing to do this, virtually concedes the right of the person claiming to appear. The omission to object was an admission of the authority. In Ackerman v. Finch (15 Wend., 652) it was held that the justice was not bound to require proof of the authority of the person who claims to appear as attorney for one of the parties, if the other party does not object, and that non-objection must be received for admission, within the meaning of the statute. The fact that [411] the summons in this case was served by copy does not, in my opinion, prevent the application of the rule laid down in the case last cited. The same provision of the statute is applicable, and np distinction exists between this and a ease where the summons is personally served. The defendant relies upon Miller v. Larmon (38 How., 417). It does not distinctly appear whether there was any issue of fact in this case. If there was not, then the rule laid down is in conflict with the case last cited, which must be held to be the law until questioned by a tribunal of at least equal authority. Upon the return of the justice, from which it appears that the person who appeared for the defendant neither proved nor swore to his authority, there was no legal error which authorizes a reversal of the judgment. The defendant, in the notice of appeal, claims, however, to reverse the judgment for errors of fact to be established by affidavits. Where the appeal is founded upon such an allegation, the appellant must serve affidavits upon the opposite party, and the latter must have an opportunity to respond and contest the matter, as provided in section 366 of the Code. (See Lynch v. McBeth, 7 How., 113; Hurd v. Beeman, 8 id., 254; Fitch v. Devlin, 15 Barb., 47 ; 2 Wait’s L. & P., 857.) Such a course has not been followed in this case. The return does not show that any affidavit was served upon the opposite party, or any proof taken to show that the person appearing had no authority. Ho such issue was made or tried in any manner. The affidavit of the defendant to procure an amended return was not served, and is not sufficient to establish any such fact. There is, therefore, an entire absence of proof of the fact alleged, and a failure to establish that there was no authority to appear for the defendant before the justice. If the views expressed are correct, then there was no error, and the judgment of the County Court must be affirmed.