OF THE STATE. OF ARKANSAS. 99 • LITTLE ROCK, Jan'y1838. TALLY, TALLY, Administrator of RIGGS, against REYNOLDS.
&bier. REYNOLDS. ERROR to Washington Circuit Court. lit is a general rule that the mere appearance of an Attorney for the defendant is alwaYs deemed sufficient for the opposite party and for the Court, who will look no further, and will proceed as if he had sufficient authority, and leave any party who may be injured, to his action, unless there appear to be fraud or collusion in the case. But a party may, before judgment, upon a sufficient showing, to be adjudged of by the Court, require the Attorney representing his adversary te show his authority. To this purpose he must show to the Court, by affidavit, facts sufficient to raise a reasonable presumption that the Attorney is acting without authority. The mere possession of the transcript of a judgment does not raise even a presumption, that the possessor of it is legally or beneficially interested in it. The simple allegation that a party is " informed and believes" that the Attorney has no authority, without stating the facts upon which it is founded, is not sufficient to call for his authority. The license and admission of an Attorney does not give him the right to appear for any particular person. To this end he must be employed. This employment may be proved by circumstances, as well as by warrant of Attorney. This was an action of debt. Reynolds, defendant in the court below, filed his affidavitc stating that he verily believed that the plaintiff's attorney had no authority to bring the suit, and his reasons for that belief. The attorney objected to the sufficiency of the affidavit, and his objections were overruled. He then introduced testimony to prove his authority. The court decided the testimony insufficient, and dismissed the suit. It is assigned as error that the court erred in deciding the affidavit sufficient, and also in dismissing the suit. WALKER and FOWLER for the plaintiff in error: After the appearance and plea of oyer, the motion came too late. That admitting it to have been in time, it did not set out a sufficient cause to warrant the court in entering the rule against him. The affidavit should have set forth the reasons upon which his belief is founded; for he does not affirm it to be true, absolutely, but only gives his belief ; and the court should see upon what that belief was founded. The circumstances of the records being in the possession of the attorney, and his appearing in the case, create a presumption of authority, which must be met by a well founded belief. The question has been settled by the Superior Court of Arkausas. See the case of Donlin,„ use of .14cPhoil, vs. A. Standifer, decided in this court, at Januacy term,
100 CASES IN THE SUPREME. COURT Lerl.LE 1833, page 100; and in Earhart vs. ROCK, Murphy. Se 1st Pirtle's Digest-, Asn'Y 1838. page 76, case 14; and Johnson's Digest, page 82, cases 22 and 23; .TALLY, 6 Johns. Rep. 37, 302; 1 Salk. 86, 88. 08. And said attorney further insists that if the court shOuld 7 be of opinion that the affidavit was sufficient, still the evidence adduced. shows ample authority for prosecuting the suit; all of which will be clearly seen by reference to the recoi-d. Cumiuths and PmE,- contra: . This was an action ot debt. The defendant in Alm court below tiled his affidavit stating that he verily believed that the plaintiff's attorney had no authority to bring the suit; and stating his reasons for that belief. The plaintiff's attorney objected to the sufficiency of the affidavit, and his _objections being overruled, he introduced testimony to prove Ws authority to prosecute the suit. The court decided the testimony to be insufficient, and dismissed the suit. The plaintiff in error assigns as error that the court below erred in deciding the affidavit of the defendant to be sufficient, and also in dismissing the suit. The defendantin error contends, first, that the affidavit was sufficient to put the plainfiff's attorney upon proof. There arc no Statutory provisions on the subject, and we are to be guided by the rules of practice, in this respect, in England and our sister States. Nothing is better settled in England than that no attorney can appear without regulai warrant of attorney. 1 Bac. Ab. Attorney, c. t. It is true that in this country the practice has not been to call upon attokneyS for the warrant and authority by which they appear. That such has not been the practice, is creditable to the profession ; yct when the authority is disputed, it must be made to appear. : Practice has Only dispensed with, and not abrogated the rule. It has been the common practice in England, when no authority could be produced by the attorney who brought the suit, to dismiss on the mere motion of the defendant alone, for want of that authority. From this follows, Secondly, That the court below did not err in dismissing the cause, inasmuch as no regular warrant of attorney was produced. See, as to the points here taken, 3d Yerger, 325, Gillespie, ex parte. The attorney who obtains the judgment cannot issue a capias4 sat. without a new warrant of attorney; nor after his client, who- was plaintiff; dies, can he revive the suit or take any other, step in it, without such neW warrant of attorney. Professional courtesy may dictate that the
OF THE _STATE OF ARKANSAS. 101 authority by which a brother attorney acts, should not be disputed; but when it is so done by express instruction of the client, the court Jan ' y 1838. • must administer the law, and decide, as the court below did, that . the TALLY, adrn ' r , attorney . will not be presumed to have any authority to app ear in the vo. cause,-but nuist produce such authority. See 2 Bibb, 382, Richardson REYNOLDS. vs. Talbot ; 2 J. J. Marsh. 181; Ball vs. Lively ; 3d Monroe, 189, Mc Alexandr vs. Wright ; 2 Bibb, 284; Ark. Dig., Juel. Pro. sec. 58. . Third, Btit even granting that a warrant of attorney was not necessary, the plaintiff's attoniey utterly failed to prove his authority by parole. One witness deposed that he had _talked with the plaintiff, Tally, about the solvency of the defendant; that he afterwards conversed with Fulton, an attorney in the original suit, about it; and that he had Teceived a letter from one Holman, who said he had bought an interes . t in the judgment. He did not know frOm whom he received the record for collection, but infers it to have been Ful-ton, for reasons. stated. That he brought the record from Tennessee, and-gave it to the plaintiff's attorney. The plaintiff's attorney stated tbat Holman' . sent hirn .. a copy of the ktters of administration; said that he had an interest -in the judgment, and urged its collection. Here was no proof whatever, of any authority from Tally, to the plaintiff's attorney. - ,Fourth, A writ of error will . not lie in such a case as the present. See 3d Yerger, 325, Gillespie,ex pat* ; and this cause must be stricken from the docket. for want of jurisdiction. • RINGO, Chirf Justice, delivered the_opinion of the court: This was an action of debt founded on a record of the Circuit Court of Lincoln county, in the State of Tennessee, brought in the name of the present plaintiff, against the defendant, in the Washington Circuit Court. The defendant appeared in the court below, and after filing a prayer of oyer of the' record, and letters of administration mentioned in the declaration, on his affidavit then filed, obtained a rule against the attorney prosecuting the suit, to show by what authority he prosecuted .the same. The affidavit stated in substance that David Walker, the attorney prosecuting the suit, had no warrant or authority to prosecute this suit, as he verily believed; and that this belief was' fonnded on the fact that the plaintiff is a resident of the State of Tennessee, and the papers were in the hands of A. F. Greer, and by 'him placed in the hands of said Walker, without the consent
102 CASES IN THE SUPREME COURT LITTLE or knowledge of said ROCK, Tally. On the return of the rule, the attorney Jan'y 1 838. prosecuting the suit, produced a witness who testified • that whilst an TALLY, attorney atlaw, he conversed with the plaintiff in this suit, relative adm'r, vs, to the solveney of the defendant, who resided in Arkansas, and hiS 115"6" s. ability to pay said debt; that he res'ponded to plaintiff that defendant was good. That he afterwards conversed with Fulton, an attorney in the original suit, about the collection of said debt; and after his arrival in ArkansaS, he received a letter from Holman, who
said he had bought an interest in the judgment. He does not recollect which of these gentlemen gave bim the record for collection which is the ground of action in this suit; but from circumstances infers that it must have been Fulton, as the plaintiff lived some distance from, and Fulton lived in town; that he , brought said record from Tennessee, and placed it in the hands of David Walker, the attorney prosecuting this suit for collection, and took the receipt or said Walker and A. F. Greer, for the collection of the same. Walker, the attorney prosecuting the suit, also testified that he conversed with the defendant long before this suit was brought, and showed him the record, and upon his refusing to pay, wrote to Tennessee and procured the letters of administration granted to the plaintiff. They were sent to him by Holman, who stated that he had an interest in the claim, and urged the collection thereof. Upon that evidence the court decided that the attorney had not shown any sufficient authority to prosecute the suit; and thereupon made the rule absolute, ordered the suit to be dismissed, and rendered- judgment for costs in favor of the defendant, against the plaintiff. The plaintiff excepted to the opinion of the court, and by his bill of exceptions spread the evidenee on the record; and has brought the case before this court by writ bf error. The assignment of error questions the decision of the court below: 1st, That the affidavits of the defendant were sufficient in law to reqnire the attorney to produce and show his authority to, prosecute this Snit: , and 2d, That the authority shown upon the rule against the attorney was not 'sufficient to enable him to prosecute the suit. The right of the defendant to call upon the attorney representing the _plaintiff to show his authority, does not appear to have been questioned; 'but its exercise was resisted on the ground solely that the facts disclosed by the affidavits:were not sufficient in law to authorize the interference of the court for that purpose. And the validity. of this
OF THE STATE OF ARKANSAS. 103 objection to the case shown by the affidavits, is the first questioh pre- Tow sented by the record, and made by the assignment of etrors,.for the Ian' y 1838 decision of this court.. The circumstances . under which the authoritY TALLY: of an attorney regularly licensed and duly admitted to practice in the advng?' courts, may be questioned, and the attorney required to have his au- REYNOLDS. thority, do not appear to be very clearly defined, .or very accurately stated in any of the authorities or books of practice to which we have been referred or had access. One general rule is, that the mere appearance of an attorney for the defendant is always deemed sufficient for the opposite party, and for the court; who will look no further and will proceed as if he had sufficient authority, and leave any party who may be injured, to bis action, unless there appears to be fraud or collusion 'lathe case. this rule appears to have been too long and authoritatively 'settled to be now disturbed. Under its influence the Supreme Court of the United States have decided that the non-appearance in the record of an authority to the attorney to prosecute or defend the suit was not error. Osborn vs. the Bank of the United States, 9 Wheaton, 738; 5 Peters' Cond. Rep. 752; and the Supreme Court of New York, after a most elaborate examination of authorities, decided that the confession of judgment by an attorney without any authority therefor, from the defendant, was not irregular, and refused to set it aside, although trie defendant's affidavit was positive that he had not in any manner, directly or indirectly confessed or authorized the confession of any judgment. The court, _however, after it had ascertained and stated the rule, arid admitted its authority, subjected it to such modifications as justice required, and leaving the judgment to stand as a security to the plaintiff; to save the defendant from injury and prevent abuse in the practice granted to the defendant leave tO plead to the merits within a limited time, and during that tithe suspended the execution of the judgment; but in the default of such plea, the plaintiff was at liberty to proceed with his execution, under said judgment. 6 Johnson's Rcp. 296, Denton vs. Noyes. The Sit-preme Court of Pennsylvania have acted on the same principle, in McCullough vs. Guefner, 1 Binnry 214 ; an attorney undertook to appear for a defendant -not sumMtned, arid without any warrant of attorney, and the court held the appearance good. In England, the Court of King's Bench, on the same. ground . compelled an attorney, who had, through misinformation, tuidertaken to appear for the defendant, without warrant or direction, to complete his appearance, so as to
104 CASES IN THE SUPREME' COURT L R t o rr m it .i render the judgment which the plaintiff had taken by • defaultiregu, hin' y '1858. lar: 1 Sir. 693, Lorymer vs. Hollister. Other authorities might b-e TALLY, cited in which the same 'principle bas been recogized aOd acted"ou in, the U . nited States as well as in England; Most o• which were ex, TNOLDB amined, reViewed, and cited in the case of Denton vs...Aroyes, 6 Jo h - .296. But however conclusively this general rule May have been es, tablished, it does not follow as a necessary consequence . that a party may not, before judgment, upon a sufficient showing; to be adjudged of by the . court, require the attorney representiog his adversary to show his authority. This right is essential to the security of all suitors, and its existence cannot be denied. In Howe's Practice, page 31, title Warrant of Attorney, it is said, 66 1f the defendant suspects that the suit has been commenced without the authority of the plaintiff On the record, he may call on the -plaintiff's attorney for Oroof of -his authority." This right was elaborately diScussed by the Court of Appeals of Kentucky, in the case of McAlexander v,p. Wright, 3 Mon-roe's Rep. 189. Atid it Was there decided that 'the defendant had Sikh right, and upon a sufficient showing that his right was jeopardized, or that he was disturbed by.being brought into litigation without the consent of the man who stood on the record as .his adversary, be was . entitled to its exercise. According to the rule settled by the Court of Appeals of Kentucky, it is incumbent on the party undertaking ` to question the authority of the attorneY representing his ad-versay, to show to the court by affidavit, fitcts sufficient to . raise a r6a-sonable Orestimption that the attorney is acting in the ease without authority from the party he assumes to represent, then, and not until then, the 'attorney may be requifed to show his authority. In defining this rule, which we understand to . have been the settled rule of practice in the courts of England and most, if not all, of our sister *State ' s, we would not be understood as imposing on the profes-. sion hardships in their management of suits, or deciding that -they are bound to gratify the party to which they arc opposed with a sight of their authOrity upon light or frivolous grounds; but when substantial. reasons are shown why the interest of the adverse party is jeopard-- ized by the prosecution of suit without the leave or consent of -the-real owner of the demand, every reasonable person will agree that their authority ought to be shown. The factS stated in the defendant's affidavits in this ease, we think were such as to entitle him to tliC rule again g t the attorney prosecut-
OF THE STATE OF ARKANSA g . 105 irog the " snit to show his authority. He_ shows that the record was ' t A to V m M c, S placed in the ,hands of the attorney by iI F. Greer, withciut the con-, Jan'y sent or knondedge of ate, plaintiff, and that the plaintiff resided- in Tatt . . ,.. : t Tenneesee.. - These facts must be regarded AS strong circuntstances, tending-directly to show that Tally had no hand in this . suit; and for that , rhason the defendant might be in danger of anbther cOntest with him' , for the- same demand. We will here remark that the facts' showh in thiS case are just sufficient to raise- a legitimate legal_ pie-Sumption against the attOiney's authority; and it the facts that the rechid was ' placed ih his hands by a third person, and pot by.;the .#16,intiff, a n „ d Without his - tofisent or knoWledge, had been less phsi7 tiveiTstated, the - tele ouat not to have been granted.' In eases'_ l , ike the preseht,,Where the el tioit is founded on the judgment of seme ;Court; a transcript-of the record whereef may he procured at any and by_any perseri who will pay 'the regal fees therefor, and Suit be instituted ih the name of the judgment creditor, without his knowledge or consent, and the moiley coerced from the defendant Without any authority whatever from the real owner of the dernand; and , becanse the mere possession of such transcript does not raise even a presumption that the posseseor has any legal or beneficial. iptereitin the judgment, the custody of which does not belong to the creditor, the rule should be Made whenever it is shown that therh:is a reasonable pihbability that the suit is prosecuted Without authority of the- judgmeht creditor or Other) person really and beneficially ihterested in the jndgment; but where the action is — founded on any
Written ohligatien, the obfigee has the legal custedy Of the instrument And-if anY other has the possession of it the legal presumption is' that he -obtained it fairly and with the consent of the obligee; and thig presuniptiOn stands, unless repelled by evidence: therefore, ih such caies,:itrOnger cireumstances should be required to he shown than in_ the ease , of record, to induce the Fourt to grant the rule against the attorney th shoW his authority: We have been referred ta tb'e ease of Standifer Vs. Doulin, for the use of . MdPhail, decided
by -the Sapreme court Of the late Territory of Arkansas. In that ease,'as in this, an affidavit WaS filed by the_ defendant denying that the attorney prosecuting the suit had any authority for that purpose. T , he' aiEdiiit there s . tated that the defendant was informed and believed that . that suit d been . instituted against hini by John McPhail and-hiS counsel, with t any lawful authority froni the plaintiff; and
106 CASES IN THE SUPREME COURT ItYPTLE he had good reason to believe that neither McPhail nor the attorney ka quitW could execute a legal acquittance for the debt, if it should be paid - TAIalt; to them. There was no statement of the facts or circumstances upon, actin% which the fears of the defendant were founded, and for that reason' tasnrisotbi. it was held insufficient . to require the attorney tO show his authority. Tile principle of that decision meets our approbation fully. The sitnPle allegation of, information and belief, without stating the facts upon which it is founded, however positively asserted, ought not, in our opinion, to be hdd sufficient. The facts themselves should be stated, to enable the court to determine how far they warrant the Conclusions -\ of the party. In the case before us, the facts are stated, and in :that, this case differs from the case of Stanclifcr vs. Doulin, tor the use Of McPhail. We are, therefore, of the opinion that the affidavits filed in this case were, in law, sufficient; and that the court did not crr in grant. ing the rule thereupon. The second question is, did *he court err in deciding that the an-thoity shown by the attorney representing the plaintiff was insufficient? The genera/ right of an attorney regularly licensed and duly 'admitted to practice in courts to appear for all of the suitors in courts br witom he may be employed, is admitted. This right he has by virtue of his license and admis,,ion, and it is proved by the prodUction of the license, and the law under which it was granted; _but it is not of itself an authority to appear as the representative of any:particular person, until he is in fact employed or retained for that person. Then, and not until then, he becomes hii attor; ney and -representative, and is authorized to appear in his stead. In thc • case beforo- Us, no warrant of attorney for the plaintiff was produced, nor any evidence whatsoever that he had retained or employea the attorney to prosecute this suit or collect the demand in question. One witness (whose namnis not even mentioned in the record) testifies that whilst an attorney at law, he conversed with the plaintiff relative to the defendant's solvency and ability to pay the debt t and informed him that the defendant was good; and that he afterwards conversed with Fulton, who had been an attorney in the original suit about tho collection of this debt. - That one Haman, afterwards informed him by letter that he had bought an interest in the judgment. He does not recollect who gave hirn the record, but inferi that he received it from Fulton. He broult it from Tennessee
OF THE STATE OF ARKANSAS. 107 and placed it in the hands of WALKER, the attorney prosecuting this LITTLE ja R n 0 C1K68 suit, for collection; and took the receipt of WALKE R and A. F. Greer, for its collection. WALKER, himself, testified that be showed the TALLY record to the defendant and conversed with him about it long before ater, this suit was brought, and his refusa1 to pay: that he wrote to Ten- REYNOLD°. nessee and obtained the plaintiff's letters of administration, which were sent to him by Holman, whO stated he had an interest in the claim, and urged its collection. From a careful examination of this testimony, it is apparent that the plaintiff has taken no part whatever in the present controversy: neither the transcript of the record nor letters of administration, appear to have been procured or sent by him; nor does he appear to have given any instruction about them, or to have been consulted in relation to the matter. No letters were written to or received from him. Once, indeed, he did converse- with the witness about the defendant, and his ability to pay; but he is not shown to have done any thing more. The witness does not pretend to have acted as his s agent, or by or under his directions or authority, in bringing the transcript of the record from Tennessee to Arkansas, and placing it in the possession of WALKER and Greer for collection. If he had acted as the agent of the plaintiff, why did he not say so? We cannot believe that a point so important would have .heen silently or inadvertently passed without explanation, if the fact had been so: and his silence on that subject furnishes strong presumptive evidence that he did not act in that character. The evidence in regard to Holman's conduct in the matter, cannot help the attorney; for although Holman appears to have corresponded with him and urged the collection of the claim, and at the same time claimed an interest in the judgment, yet he is not shown to have had, in fact, any interest whatever in the matter; and until that was shown by some right delivered from the plaintiff or his 'intestate, he could not be regarded as a person competent to confer the authority requisite to enable the attorney to prosecute this suit. We are therefore of the opinion that the attorney representing the plaintiff did not show any competent legal authority to prosecute this suit, and there is no error in the , decision of the court below. The judgment of the Circuit Court is therefore affirmed, with costs.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.