Compher v. Anawalt

The opinion of the Court was delivered by Sergeant, J. This writ of error brings up singly the judgment on the scire facias against Compher, at the suit of the administrators of Anawalt. It does not profess to remove from the court below the original judgment; nor, indeed, could a writ of error issue for that purpose, as more than seven years had elapsed from the rendition of the judgment. The only question, therefore, is, whether the judgment in the scire facias is erroneous ; and it clearly is not so on its face, having been entered after the return of two nihils, which, by long established practice, warrants a judgment; though, it must be confessed, it is a practice liable to abuse. The refusal of the court below to open this judgment, was a matter resting in their discretion, and not assignable for error. If we were at liberty to look behind the scire facias, and examine the original judgment, there is nothing apparent on the record which would enable this court to declare that there was no judgment against Compher. There was a general appearance by the attorney marked on the docket, opposite both defendants, and the subsequent proceedings, as far as the award, went on without discriminating between them. The case of Erdman v. Stahlnecker, 12 Serg. & Rawle 325, has been relied on by the plaintiff in error as an authority to take the case out of the operation of the rule, that a general appearance by attorney is an appearance for both defendants, as well the one who is not served with process, as the one who is. But the striking feature of that case was, that although there was a general appearance, yet the plaintiff, by his declaration, had excluded from the suit the defendant, who was not served with process, by the use of what, in our practice, is a substitute for the English proceeding of civil outlawry. In the present case no narr. was filed, the case occurring before the act of 1820, which required a declaration to be filed by the plaintiff before he takes out a rule of arbitration. Looking at the case therefore as a c.ourt of error, it is beyond our power to grant relief. The .case,‘however, as it stands in the court below, appears fraught with the most striking injustice to Compher. The sheriff comes to [493] him in 1832, at his residence in Bedford county, with executions for a considerable sum of money, issued -out of the court of common pleas of Somerset county, and levies on his goods. He then learns for the first time that a suit had been brought against him and another person in that court in the year 1819 ; that in consequence of the entry without his direction or knowledge, by an attorney of the court, of his name on tire margin of the docket, he was made a party to the suit, a rule of arbitration entered, and an award and judgment obtained against him ; that this judgment, after having slept ten years, was revived by two scire faciases of which he had no notice, and he is now apprised that he must pay a large sum of money or submit to the seizure and sale of his goods ; he at the same time being willing to make oath that he owes nothing to the plaintiff in the suit. Such is the case which appears on the affidavits of Compiler, and also of Fleming the attorney: and if the facts stated in the affidavits are made out to the satisfaction of the court below, they imperiously demand the interference of that court. Of its power to grant relief in the case there can be no doubt. It is true that an attorney being an officer of the court, his acts are to be deemed the acts of the party for whom, in the course of legal proceedings, he assumes to appear. But the meaning of this rule merely is, that the acts of-the attorney will be deemed regular though a want of authority be subsequently shown. The court will, notwithstanding, in every case interpose and grant relief, so far as it can be done without injury to the other party. In Coxe v. Nicholls, 2 Yeates 546, in this court, an amicable action had been entered and judgment confessed by an attorney who afterwards absconded. On the defendant’s affidavit, that ho had never employed the attorney, and that the first notice he had of the proceedings was by a note from one of the plaintiffs some time after the date of the judgment; the court, though there was a counter affidavit by the plaintiff, allowed the judgment to stand as a security, and permitted the defendant to contest the demand in point of law. The same principle has been since adopted in New York, in the case of Denton v. Noyes, 6 Johns. Rep. 296, where the subject is thoroughly examined by Chief Justice Kent, and all the cases reviewed. There an-attorney appeared for a defendant, against whom a writ had been issued and not served, and without the defendant’s authority confessed a judgment. “ I am disposed,” said the chief justice, “ to prevent all possible injury to the defendant, and at the same time to save the plaintiffs from harm. This can be done only by preserving the lien, which the plaintiffs have acquired by their judgment, and by giving the defendant an opportunity to plead, if he has any plea to make, to the merits.” In the case of Brooke v. decided at Philadelphia at the last term of this court, an attorney, by the direction of one defendant, in a suit against two, appeared and acted for both. It was discovered soon after that the direction was without authority; and the court of common pleas, on (he application of the attorney [494] and proof, allowed the original appearance for both to be amended, by restricting it to a special appearance for one, and this court relieved the injured party from an award and execution against him. So strongly impressed is this court with the propriety and justice of granting such relief to the plaintiff in error in this case, that he is permitted to withdraw his writ of error, in order that he may make application to the court below for that purpose. The other case between the same parties stands on a similar footing with the present, and the same order is also made in it. Judgment stayed, with leave to plaintiff in -error to withdraw his writ of error.