Dillon v. Rand

Mr. Justice Elliott delivered the opinion of the court. It is well settled that the authority of an attorney to appear for a party to an action in a court of record may be controverted while the action is pending, and probably at any time before the expiration of the period in which the court may grant relief under section 75 of the code. The [375] question of such authority may be raised upon due notice by sworn petition, or by motion supported by affidavit; and, if an issue be made upon such petition or motion, the same may be tried and determined by or under direction, of the court as other issues of iact. Ordinarily, such issue may be tried and determined in a summary manner without difficulty. Code, §§ 173, 201; Williams v. Canal Co. 13 Colo. 469. Neither of the Dillons had been served with summons. The question of Mr. Palmer’s authority to appear for them had been properly raised by motion and affidavits. It was therefore irregular to grant the default against them without first disposing of the motion on file to vacate the appearance which had been entered for them by Mr. Palmer. The jurisdiction of the court over their persons depended upon the authority of the 'attorney to enter such appearance. Code, § 168; Railroad Co. v. Nicholls, 8 Colo. 188; Chivington v. Colorado Springs Co. 9 Colo. 597. It is objected that the affidavit of M. F. Dillon is not authenticated as required by the act of congress, providing for the authentication of records and judicial proceedings of the courts of other states. The 'affidavit under consideration is not a judicial record. Our Code of Procedure, §§ 388-310, provides for the taking and certification of affidavits “ taken in another state or territory of the United States, to be used in this state.” From the code .provisions above referred to, it is clear that when an affidavit is taken before the clerk of a court of record having a seal, and is certified by the clerk under such seal, it is to be regarded as prima faoie authentic. From the records before us, no presumption can be indulged that Mr. Hunter was authorized to employ Mr. Palmer as attorney for the Dillons. If he was so authorized, plaintiff should have controverted the affidavits presented by defendants. No answer or response whatever was made to the affidavits denying Mr. Palmer’s authority to appear for the Dillons. These affidavits showed posi [376] tively and unequivocally that Mr. Palmer’s appearance for them was wholly unauthorized! Hence, the entry of appearance for the Dillons should have been vacated, and all proceedings against them suspended, until the court should have acquired jurisdiction over them. The decision of the county court is reversed and the cause remanded. From the record before us, we perceive no reason why plaintiff should not have judgment rendered upon the finding in his favor against Marrs, Middleton & Hunter. B&versed.