The Seattle post-intelligencer. [volume] (Seattle, Wash. Terr. [Wash.]) 1888-1914, 1891-09-16
NO PROCESS SERVED.
An Interesting Opinion on the Law Of
Construetixe Appearance.

wv ROSESS SEM ED
An Interesting Opinion on the Law of
Constructive Appearance.
Judge Lichtenberg has rendered an interest
Ing opinion touching on the law of constructive
appearance, in the case of A. z. McEschern Vs.
William Brackett, John Leary, Guy C. Phinney,
John c. Brantigan, George kinnear and Theo-
dore Nicolai. The opinion is as follows:
The complaint in substance sets forth:
First - That in November, 1883, defendant
Enfkett sold a certain lot situated in the city
Of SEATTLE, the lot being then and now occupied,
70 the plaintiff for $780, receiving $3.50 in cash
and the plaintiffs promissory note, payable on
, or before six months for the balance, $500, with
interest, and 10 secure the payment of said note,
executed and delivered his mortgage on said
premises-
the plaintiff that payment would not be en-
forced on said note ana mortgage "until after
said plaintiff should have had reasonable notice
In which to prepare for payment"
Third-That defendant Brantigsn being the
holder and owner OF said note and mortgage, on
the i4th day OF August, 1884, commenced an ac-
sonal service of the summons having been duly
served on defendants Phinney, Ieary and
Braekett. but A. E McEachern, defendant in
at bar, was never served with process.
Fourth--That in said foreclosure proceeding
general demurrer to complaint was filed by GER
tain attorneys-at-law In behalf of the defend
ants" Inadvertently emitting 10 designate
which OF the defendants they represented;
shat said demurrer was fled in behalf of the
defendants who were served with the process"
that said attorneys were employed TO represent
said Phinney, Leary and Bracket, and for no
other purpose. IL was not by said attorneys In
tended. nor did they enter the appearance of
said MeEachern In said foreclosure proceedings,
nor did be authorize or employ said attorneys,
nor authorize any one else to employ them.
Fffth-satd demurrer having been overruled,
judgment by default was entered, the premises
sold In January, 1855, and bid in by Brantigan,
nj in ~
him conveyed 70 Theodore Nfcoiai
sixth-That all the defendants herein, includ-
ting said Nicolai. knew that said McEachern was
not served with process, and that the said attor-
neys "were not employed TO represent, nor did
they enter the appearance of this plaintiff in
said foreclosure suit" That the defendants
which was in this state. and could have given
notice, and that he had no notice of said
proceeding until long after the sherifs sale I'M
der said judgment IN said action, and that said
Nicolai and wife before the purchase knew
shat the court had not obtained jurisdiction of
the plaintiff herein in said foreclosure proceed
edge Of ali the facts in this complaint alleged.
and as speculation arising out OF said defective
title /"
seventh-The plaintiff tenders and brings
into court the amount due on said note and
mortgage.
These facts the defendants by their demurrer
admit to be true. We, therefore, have before US
acase in which the owner of property, resi-
dent OF the state. the party most To be affected,
not served with process, either actual or con-
nnrrer Of an unsu,borized sttorney. without
bic knowledge or consent, his property taken
nom him, with all the facts known to the de-
s s.a including she purchase, alter suen
tie plaintiff entitled to the relief prayed for.
eevft setting aside the Judgment in the fore
closure proceeding and sale of such property,
md the canceling of the deed to Sicolai on the
PAYMENT OF such sum rs the court shall deem
Just aud agreeable 20 equityf
Did the general demurrer fled by the attor-
neys in the foreclosure proceeding, under the
iseis, constitute an appearance of the defendant
MeEachern, who was not served with process?
We hold it did not Section Y Of the code of
ISL says "the defendant appears in an action
when he answers. demurs or gives the PLAINTIFF
written notice OF his appearance, or when an at
torney gives notice of appearance for him"
Whilst il has been held under a similar pro-
vision. code civil procedure OF California LOLA,
that IL was an appearance under the express
Provisions of the code. Rollon VS.. Coyne ct al,
81 Cal, page &
Yet the same court FIVE years later, in constru-
ing the same provision. held there was no sp-
pearanee, because the defendant cannot be
said TO demur unless he does so in person or by
an attorney authorized 10 represent him.
MERGED county vs. Hicks ct al, eth Pac. Rep.
lf9
This ruling seemingly should be decisive
against the demurrer, but it is conteuded that,
considering the appearance was not authorized,
yet under the law an unauthorized appearance
OF an attorney IS binding anu judgment OBJ
tsined upon such appearance is conclusive, "the
remedy of the party injured being an action
sgsinst The attorney. whether anIsr ths iacts
question presented for decision. The authori-
Ties lay down two ruIes-one ancient. the other
modern To discuss the principles involved and
snS o reasons upon which the principles are
.upunaed for the respective rules would for US as
.ne trisl court be futile. Only the decision OF
ns appellate court can determine the cor
asrs rule as applicable in the state
The subject OF the effect of a Judgment pro-
suIea ey the acts ~ an unauthorized attorney
Vpeas np one OF those embarrassing questions
ssoat which few agree, upon which the most
contradictory views are expressed with equal
certainty, and which the more il is discussed
me less settled II appears TO become" Weeks on
The old English rule followed by most If not
al OF the olcer states. New Jerssv being one of
the exceptions, C2s New Jersey Law no., support
tce contention OF the defendants, following
TIE leading case. Denton v Moves sSh John-
ston, 2qa.s.c. 9th Am Dec ~ vii sic Foreclosur,,
Mortgage sec. %; / lawson Remd see Isl
The newer states. Michigan being one of the
exceptions (ss Michigan 81 are opposed 70 the
rule o! the oder states. following the LEADING
ease. Harsksyv. RlaekmaEr. 70 lows lei 10 Ia.
The modern rule being that the party is
entitled TO relief when judgment has been
rendered against him by the appearance of an
Unauthorized attorney, If he seeks the relic. bv
I'll or motion promptly, anu hss been gully
o. no laches even IN 3 collateral proceeding
LFown Jurisdiction sec. 70 Slack on Juds-
naents. sec. ST., S74 Freeman on Judgments,
see. IN 4s9, sea Meschzm on Agency, see SIC.
baason v Lyford 18th Am Dec. 10 notes.
Las question of negligence or laehes Is not
hereta
~ Denton ". Noyes, Chancellor Kent, then
49,. lastiee, Ia delivering Judgment of the ma
sly aaaered, with some modification, how
sg,.se the Eaglish case reported in | Salk Sd
talss sasllee Dillon In HaFskey vs. BlackmafF
sAo.essie~s Denton Moves. and inter aha
hAa apsge l7sl that in England 'she rule, q
Nos.s"sh IN salk followed in Denton Va
stssys.s-s quite receatiy aud upon great coz
ossfsa,eaaossn criticised and pSrtislly. AZ least
later Er~a.., Since Judge Dlllon's review,
iale Cas- ease expressly oyergules the rule
kSQss salk. ., Reynolds vs.. Howell, l.
n - s C., Moak r2a
basel E,s1pte upon which the modern rule Is
Judgment Of court, given without