McLear v. Reynolds

CHASE, J. In justice’s court an attorney at law, as such, cannot appear for a party. The “attorney” referred to in section 2886 of the Code of Civil Procedure is an attorney in fact. The appearance of an attorney at law in a court of record is evidence of his authority, but an attorney in fact appearing in justice’s court is a mere agent, and the rules of law relating to principal and agent govern all matters relating to such appearance. The fact that the agent or attorney in fact employed in justice’s court is an attorney at law does not enlarge his authority. In determining the authority of an attorney who appears in a justice’s court, it is necessary in each case to ascertain the contract made between the party and the attorney. A general authority to appear in an action in justice’s court entitles the attorney, when present in court in the conduct of the case, to do whatever the party could have done if present, until after the final submission of the cause. When the case is finally submitted, the authority of the attorney terminates. Beardsley v. Pope, 88 Hun, 560, 34 N. Y. Supp. 846. Any act of an attorney in fact or agent subsequent to the final submission of the cause must be based upon special authority from the party. The only authority of O. in this case was “to act as her attorney in the trial of- the above-entitled action in justice’s court.” The defendant did not claim to serve the notice of appeal on O. as the attorney who appeared for the plaintiff in justice’s court, neither did O. admit service of the notice of appeal on himself. The admission purports to be that of Hannah McEear by her attorney in fact. O. clearly did not have authority to make such admission. O. sent the notice of appeal served on him to the plaintiff by mail, but there is no evidence showing that the plaintiff ever knew that O. had admitted service of the notice of appeal in her name. Assuming that she had knowledge of the same, her failure to repudiate such service would not be a ratification of other acts or authorize the service of other papers on O. There is no dispute but that at the time the offer of judgment was served upon O. he stated that he could not receive it as attorney for the plaintiff, and that he was not her attorney, and could not bind her by receipt of the paper. O. was not authorized to receive the offer of judgment for plaintiff. He had not appeared as an attorney at law for the plaintiff in the county court. The service upon him, therefore, is not binding upon the plaintiff unless section 3070 of the Code of Civil Procedure expressly authorizes the service of an offer of judgment upon the attorney who appeared in the court below. There does not seem to be any reason why the statute should authorize the service of an important paper, affecting the rights of the [459] parties, on a person whose employment by the party to be served has terminated. The only instance where service of a paper on the person who appeared as attorney in a justice court is expressly authorized after the submission of the case in the lower court (section 3048, Code Civ. Proc.) is one where there is a sufficient reason therefor. In that case it saves the right of appeal to a person aggrieved when a better notice to respondent is impossible or impracticable. Every reason requires that an offer of judgment should be served on the party, or upon his attorney in the appellate court. An attorney at law who has appeared in the appellate court has authority to act for, and is responsible to, the party for whom he appears. A service upon a person between whom and the party the relation of attorney and client does not exist, and between whom and'the party the relation of principal and agent has terminated, might result in a loss for which there would be no remedy. In section 3070 of the Code of Civil Procedure, an “attorney” is twice mentioned. In the first instance the attorney referred to is the attorney of the party upon whom the notice is to be served, and in the second instance it is the attorney of the party who makes the offer of judgment. If the notice of appeal was signed by an attorney at law, or the appellant had otherwise appeared by an attorney at law in the county court, or if the respondent had appeared in the county court by an attorney at law, we think that it would not be urged that the attorney of such party so having appeared was nevertheless, for the purposes of said section, the attorney in fact who tried the case in justice’s court. Unless it is so contended, the word “attorney” in said section would mean the attorney in fact who tried the case in justice’s court, or the attorney at law who had appeared in the appellate court according to the facts existing at the time of the servicé of notice in each case. After the notice of appeal is served, and the case is actually in the county court, the only attorney recognized is an attorney at law. If the statute intended that an offer of judgment in the county court should be served upon the attorney in fact who had appeared for the party in the justice’s court, it would have beep so expressly provided. We conclude that the attorney referred to in section 3070 of the Code of Civil Procedure is an attorney at law representing the party in the appellate court. Order affirmed, with $10 costs and disbursements. All concur.