# Brown v. . Nichols

> New York Court of Appeals · March 21, 1870 · 42 N.Y. 26

URL: https://www.frixlaw.com/law-library/cases/3618199

## Case

- **Full name:** John Carter Brown, Appellant, v. Asher P. Nichols, Administrator, &C., of Albert D. Patchin, Deceased, Impleaded With Others, Respondent
- **Court:** New York Court of Appeals
- **Decided:** March 21, 1870
- **Citations:** 42 N.Y. 26; 9 Abb. Pr. 1; 1870 N.Y. LEXIS 17
- **Precedential status:** Published
- **Opinion:** Dissent by Grover
- **Judges:** Earl, Ingalls, Grover
- **Cited by:** 67 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3618199

## Opinion text

Grover, J. (dissenting.)
The questions arising upon the "exceptions taken to the legal conclusions of the referee are: 1. Whether a judgment rendered against a party not served with process, and who had no notice or knowledge of the action, but for whom an attorney, licensed to practice in the court, appeared, without any authority from the party so to do, and the party having no knowledge of such appearance, is valid as against such party, the other party having acted in good faith, upon the belief that such appearance was authorized, in the recovery of the judgment. . 2. Whether a lien acquired upon equitable assets by the commencement of a creditor’s suit to collect a judgment, out of such assets, after the return of an execution unsatisfied, becomes extinct upon the death of the defendant, before the appointment of a receiver in the action, or possession of such assets acquired by any proceed
*36
ing therein. The counsel for the appellant insists that it is conclusively settled by authority in this State, that such judgment is legal and valid against the party, and as such "binding in all respects,, save only his right to apply to the court, by motion, to set it aside, which motion will be granted only when the attorney who has appeared without authority is insolvent and unable to respond for the damages, or other equitable reasons therefor are established. An examination of the cases will show that this question has never been determined by the court of last resort, although somewhat discussed, and in the opinions in two cases the law is stated as claimed by the counsel; but the ■cases will, I think, show that the point was not determined by the court. In
Acker
v.
Ledyard
(4 Seld., 62), the question was, whether the sheriff was discharged by payment of the money into court which he had collected upon an execution and a claim made -by a landlord for rent against the execution debtor, under the provisions of the statute then in force, such payment having been made pursuant to an order of the court out of which the execution issued. It appeared that upon the hearing of the motion upon which the order was made, an attorney appeared for the landlord. In discussing the question the learned judge cites cases from the Supreme Court, holding that the unauthorized appearance of an attorney renders the proceedings valid against the party for whom he appears; but, without stating whether he concurs therein, adds, that it is not necessary to place the case upon this ground, for the authority of the attorney did not seem to have been disputed upon the trial of the cause. It thus appears that the question was not in any way involved in the case, and all that was said in relation to it was
obiter.
In
Bates
v.
Voorhies
( 20 N. Y., 525 ), the defendant’s attorney died intermediate the trial, which was before a referee, and the entry .of judgment upon the report. After the death of the attorney a firm of attorneys served notice of appearance for the defendant without authority from him. The attorney for the plaintiff afterward served notice of the judgment upon
*37
this firm, and the question was, whether this service was good for the purpose of limiting the time of the defendant for bringing an appeal from the judgment. It clearly was if the defendant was bound by the unauthorized appearance of the attorney. But the court held the defendant’s right of appealing not affected by this unauthorized, appearance; in effect, holding it a nullity. Although the learned judge, in his opinion, cites
Denton
v. Noyes, and speaks of it as a decision of very high authority,' and does not profess to overrule it, yet it strikes me that the conclusion arrived at, which was concurred in by the court, can hardly be reconciled with that case. The question arose, not upon a motion
to Bet
aside the appearance, but upon an appeal from an order dismissing the appeal from the judgment, on the ground, that it was not brought in the time required after notice of the judgment. This order was properly granted if the party was bound by the unauthorized appearance. If such appearance was not binding, as held by the court for this purpose, I am at a loss to see why it should be held effectual to bind him by a judgment. Upon a motion to set aside the appearance, the question would be different. If set aside, it would no longer be in the case for any purpose. But the point adjudged was that the appearance remaining in the case, being unauthorized was of no effect in limiting the right of appeal.
Hamilton and others
v. Wright, ( 87 N. Y., 502 ), is relied upon by the counsel for the appellant as an adjudication by this court sustaining the validity of the judgment. The point in that case was, whether grantors of land, held at the time adversely, were liable to the defendant for the costs of an ejectment brought by their grantee for the recovery of the land against the party holding adversely, without their knowledge, in their names, the attorney having been employed by the grantee without any authority from them other than what was to be implied from the grant by them. It was held that they were liable. Had this been placed upon the ground that their appearance by attorney in the action rendered the judgment valid as to them, the position of the counsel would be correct,
*38
as tlie point is directly involved in the case. From the opinion of Woodruff, J., it appears that he considered that the appearance of the attorney, although unauthorized, rendered the judgment valid, and that this was the ground of his judgment, although from the report it ■appears that he assented to the correctness of the principle upon which Mason, J., placed his judgment. That was that the grantors, by their conveyance, gave authority to the grantee to commence an action in their names against the party holding the lands adversely for the recovery of possession, and to employ an attorney for that purpose. Hunt, Oh. J., concurred in this view. The report does not show the view upon which any. of the other judges placed their vote. It fails to show that any other judge concurred with Woodruff, J. Although silent as to any dissent, where two distinct grounds, having no connection with each other, are assigned for the judgment, upon either of which it may be sustained, this silence does not warrant the conclusion that the court concurred in both. It follows that this case. does not authoritatively determine the question. The point was elaborately discussed and determined by a divided court, in
Denton
v.
Noyes (6
Johns., 296), holding the judgment valid. The court in this case endeavor to obviate the injustice that may manifestly arise from the rule, by permitting the defendant to come in and defend the action upon terms. An examination of the authorities upon which the court held the judgment valid, will show that this was an innovation upon the practico adopted in those cases; that was to turn the party over to an action against the attorney for redress of the injury. This, when the attorney was solvent, would afford a partial remedy; but in case the attorney died before a recovery therein, at common law the right of action was gone, and the party in that event would be wholly remediless. The relief given in
Denton
v.
Noyes
is only partial. In case the defendant liad no defence, he was charged with the costs of the action without any redress. The court were governed in their determination by the English cases cited. The authority of these'
*39
cases was much impaired, if not entirely overthrown, by the subsequent determination of the King’s Bench, in
Robson
v.
Eaton
(1 Term, 62). In that case it was held that, where an attorney had brought an. action under a forged power of attorney and collected a debt, the defendant was not thereby discharged, but that another action could be maintained agains1" him. for its recovery. The learned judge says he is persuaded that it was not designed, in the latter case, to overrule the for mer ones. On what he based this inference I am unable to discover. Surely it was not intended to hold that plaintiffs are not bound by the unauthorized appearance of attorneys, equally with defendants. Again, the learned judge says that
in Robson v. Eaton
it was inevitable that one of the parties must suffer in the first instance, and be left to his remedy over; and the court left the hardship to fall upon the immediate victim of the fraud, who, perhaps, if he had examined and duly questioned the warrant of attorney, might have traced and detected the forgery; and adds that he could not perceive that the case had much bearing on the present question. With deference, I would remark that it was an adjudication upon the precise point. That point wras whether the plaintiff was bound by the unauthorized act of the attorney in bringing the suit and collecting the money, and the court held that he was not. It is true that no equitable relief could be given to either party; while in the case then under consideration the court could and did give such relief by giving to the defendant an opportunity to defend upon terms. The question, whether a party is bound by the unauthorized appearance of an attorney, must be determined as one of law, and cannot be left in the discretion of the court to hold him bound when equitable or other relief can be given, but not bound when it cannot. This case of
Denton
v.
Noyes
has been since followed, and considered controlling in the Supreme Court, but in several instances accompanied by expressions of strong disapprobation by the ablest judges. (See
Meacham v. Dudley,
6 Wend., 515 ;
Grazebrooke
v. McCredie, 9 Wend., 437 ;
Allen
v.
Stone,
10 Barb., 547 ). The rule is in conflict with
*40
that adopted in regard to judgments rendered in other States and given in evidence here under the provisions of the federal constitution and act of congress. In regard to these, it is provided that the same faith shall he given to the judgment here as in the State where rendered. In regard to such judgments, it has been held by this court that the appearance of an attorney without authority does not confer jurisdiction, and that the judgment, if not otherwise sustained, is void.
(Kerr
v.
Kerr,
2 Hand, 242 [41 N. Y.]) It will be observed that the question is one whether, at common law, such judgments are valid. In the absence of proof to the contrary, the presumption is that the common law prevails in the other States of the Union. How then can it be held that, by the same law, jurisdiction is conferred upon tho courts of this State by the unauthorized appearance of an attorney, while it is not upon the courts of other States? It is claimed that the
American Ins. Co.
v.
Oakley
( 9 Paige, 496 ) is an authority sustaining the rule adopted by the majority of tho court in
Denton
v.
Noyes.
An examination of this case shows that the chancellor held that the solicitor was authorized to appear. Hence the discussion and determination of the. effect of an unauthorized appearance was not necessary in the case. This precise question arose in
Shelton
v.
Tiffin
( 6 Howard, 163 ), in the Supreme Court of tho United States, and it was held by that court that an unauthorized appearance by an attorney did not confer jurisdiction upon the court, and that the judgment was, as to such party, void. It must be borne in mind that, in this and the other cases in which the question has arisen, this appearance was the only source of jurisdiction. That the party was never served with process. Had the latter fact occurred, jurisdiction would have been thereby acquired. I shall not discuss the cases that have arisen in other States. These are somewhat conflicting, and furnish no surer grounds than those above cited. Were this a question affecting to any extent titles to property or the business transactions of meu, erroneous as I consider the rule adopted in
Denton
v.
Noyes,
I should regard it the duty of the court to adhere to it, and
*41
leave to the law-making power the duty of substituting a wiser one in its place. But it is not such a question. Upon principle there can be but little doubt. The proposition that, by the admission by the court to practice as an attorney, power is conferred upon the attorney to confer jurisdiction upon the court as to all mankind, by his appearance, without any authority whatever therefor, is a proposition so entirely at variance with reason and all the analogies of the law as scarcely to be capable of discussion. It is rightly said that jurisdiction may be acquired of the person either by service of process or the voluntary appearance of the party, and that a party may legally appear in person or by attorney. From this it is argued that the appearance of the attorney is legal. as to the court and opposite party. • But this is begging the whole question. The admission of an attorney confers upon him no more right to appear for another in court, without being authorized, than it does to act as his agent in any other matter. True, no one can appear in court as the attorney of another without having been admitted as attorney by the court; but, having been so admitted, he has no power to appear for another, unless authorized so to do, any more than to act as his agent in matters where no license from the court 'is required. His appearance, under such circumstances, is not the appearance or act of the party in any sense, but his own act, for the consequences of which he alone is responsible, the same as any other agent assuming to act for another without authority in any other matter. But it is insisted that the rule in
Denton
v.
Noyes
is required by public policy; that, without it, neither the court nor opposite party could rely, with entire safety, upon the validity of the appearance of an attorney. This is true ; but the question comes to this, so far as policy is concerned, whether it is better to require the opposite party to inquire into the power of an attorney when there is any possible doubt in regard to it, before any injury has arisen from his act, in case he does not possess it, or to hold a party bound by a judgment in an action of which he has had no knowledge and by the result of which
*42
he may he ruined. It is no answer to say that the court will relieve upon motion Avhere the injury is great and cannot otherAvise be remedied. The party has no absolute legal right to any such redress. Once hold the judgment valid, and all the remedy left is an appeal to the discretion of the court, Avhich the rule itself Avould require to be equitably exercised, not only in vieAV of the effect upon the rights of the party applying, but upon those of the opposite party and others Avho had acquired rights under the judgment. This is the essential difference betAveen a right based upon the Iuav and one resting in the discretion of the court, Avhich may be granted or denied as the court deems proper. Again, it is said that the case will be one of rare occurrence. This is true; but this affords but small consolation to a party ruined by a judgment in an action of Avhich he has known nothing. It matters but little to him whether many or few are involved in like manner. My conclusion is, that no jurisdiction is acquired by the unauthorized appearance and that the judgment is void. That, in the present case, it is the plaintiff who must look to the attorney for redress. That the finding that Patchin had no defence is wholly immaterial. If he was bound by the unauthorized appearance, he is by the judgment, Avliother he had a defence to the action or not; and if not bound by the appearance, he is not by the judgment. My conclusion is, that Patchin was not bound by the appearance of the attorney, and consequently not by the judgment. This disposes of the case and renders an examination of the question whether the lien upon the equitable assets of Patchin Avas extinguished by his death unnecessary. I have examined this question however, and arrived at the conclusion that the lien was not thereby discharged ; that
Worthington
v.
Pierson
(3 Edwards Ch., 297) and
Mathews
v.
Neilson
(id., 346), holding the contrary, were Avrongly decided by the Adce-chancellor. The only reason assigned for the decisions in those cases was the statute prescribing the order for the payment of the debts by the personal representatives. I can see no good reason for giving such an effect to this statute. It provides a rule for admin
*43
•istering the property of the deceased, and not that of others. That the lien acquired by the plaintiff by the commencement of the suit was good against Patchin, and all claiming under him by title subsequent, as to this property, during his life, is conceded. There is no reason for holding that upon his death his administrators took the property discharged of the lien. Such a rule would subvert the well established rule that a prior equity will prevail against a subsequent legal title as to all except
bona fide
purchasers. The order appealed from should be affirmed, and final judgment for the defendant given upon the stipulation, on the ground that the judgment is void for want of jurisdiction in the court by which it was rendered.
Earl, Ch. J., Lott, Sutherland, Hunt and Poster, JJ»? for reversal.
Smith, J., for affirmance on the grounds stated in Ingall’s opinion.
Foster and Smith would concur with Grover as to the validity of the judgment, if a new question, but thought the law settled otherwise.
Judgment reversed, with costs to both parties payable out of the fund.
Note.—It will be seen that, in the case of
Kerr
v.
Kerr,
cited by respondent and referred to in the opinion of Grover, J. (reported in 2 Hand, 272), there was no proof that the persons describing themselves as attorneys, who appeared and answered in the action, were in fact such. The judgment in that case was a judgment of divorce, rendered by a Circuit Court of the State of Indiana; and the court decided that such a judgment may ba impeached collaterally, by proof that the court did not acquire jurisdiction. Rep.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3618199. Public record. Not legal advice.