Masterson v. Le Claire

Elandrau, J. By the Court The Plaintiff below, Le Claire, sued the Defendants Masterson & Hoyt upon a promissory note, executed by them, Masterson signing in person and Hoyt by Masterson, his Attorney. Service of the summons in the action was admitted by the Defendants, or rather the return to the writ of error contains the following statement of that fact, on the back of the summons: “ Due service of the within summons by copy of the same.is hereby admitted this 11th day of April, A. D. 1859, by each of us the undersigned. “H. E. Masterson, “Albert S. Hoyt,by “ H- E. Masterson, Ids Attorney.” After the expiration of twenty days, no appearance having been made by the Defendants, judgment was entered by default, the only proof of the service of the summons being the above admission on the back thereof. The Defendants bring error, alleging that the record shows no service of the summons, and consequently no jurisdiction of the person of the Defendants by the court below, as the court could not take cognizance of the handwriting of the Defendants. The Plaintiff reads an affidavit of the genuineness of the signature, and moves to amend the record by showing that fact. The proof of service of the summons is defective as to both the Defendants. It is alleged that the Defendant Masterson is an Attorney of the District and Supreme Court, and that his signature will be judicially recognized. 1 do not think the recognition of the signature of Attorneys by courts, extends beyond their professional acts done in performance of their duties as Attorneys. Their signature to any private paper disconnected with their duties as officers of the court requires the same proof as that of any other individual. The admission of service of a summons where the Attorney is Defendant is as much a private act as his signature to a deed or note. It is no part of the duty of an Attorney, nor is it within his power as an Attorney, to admit service for his client of an [167] original process by which the court obtains jurisdiction for the first time of his person. To exercise such a power and bind his client, he would require a special authority, and in the performance of the duty he would act as an Attorney in fact, and not as an Attorney of the court. The relation existing between the Attorney and the Defendant for whom he admitted the service would be more that of principal and agent, than Attorney and client. The latter relation only begins when the court has obtained jurisdiction of the party to the suit, and his appearance therein by Attorney. To perfect the proof of service of the process upon the Defendant, there should have been proof of the authority of Masterson to make the admission for him, and also proof of the genuineness of Masterson’s signature as Attorney. But admitting the insufficiency of the proof of service as disclosed by the record, yet the defect is an irregularity only. There .is an attempt to make proof'that the service was properly made, which is defective. There is no erroneous ruling of the court excepted to by the Defendant, which calls upon this court for review. The court in which the judgment was entered has full control of its records, and can set aside a judgment irregularly made up, or grant such amendments as may be necessary to correct the defects. The application should have been made below. This court is designed to exercise appellate jurisdiction only, and will review the errors of courts alone, not those of the officers of courts. The Clerk of the District Court in cases like the one at bar, enters judgment pursuant to the notice in the summons, on proof being made that the summons was personally served and that.no answer has been received. If he accepts insufficient proof of the service, the way to correct the error is by motion to the court where the record is filed. If the court errs in the decision of the motion, such decision would be the subject of review in this court, under the sixth subdivision of section eleven, pages 621 and 622 of the Public Statutes, as an order affecting a substantial right.made upon a summary application in an action after judgment. The motion to amend the record in this court will not be entertained where the points upon which the case is brought [168] up, are such as this court will not take cognizance of. The judgment is affirmed but without prejudice to an application being made in.the court below for the relief sought here. Case remanded. Chief Justice Emmett dissents from the foregoing opinion.