Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1897-12-19


old practice, that where an attorney az
peared for a defendant in an action
wherein a writ had not been served, with
out authority, the judgment against such
defendent was held to be regular unless
it appeared there was fraud or collision
between the plaintiffs and such attorney.
or unless the attorney was unable to an
swer for damages to his sunled ~cilvi.,.
Denton VS.. Moves, 3 Am. Dec. 237. =,
The reason ofthis rule was well ground !
ed. By licensing attorneys, the courts !,
recommend them to the confidence of the F,
public, and the opposite party who has
concerns with an attorney in litigation
should not be required to look beyond |
the attorney to his authority. The mere
fact of his appearance was deemed sutfl-
cient for the adverse party and for the
court.
This rule was somewhat modified by
the court in Denton VS.. Noyes, supra, by
allowing the defendant to make a defense
to the suit. Kent, Chief Justice, who rem
dered the opinion. gives the reason for
such modification in observing that, IF
there had been any COLLISION between
plaintiff and attorney for the defendant,
it would have altered the case, but there
is none shown or pretended, and my
whole opinion proceeds on the ground
that the plaintiffs have acted in good
faith. | am disposed, therefore, to pre-
vent all possible injury to the defendant
and at the same time save the plaintiff
from harm. This can be done only by
preserving the lien which the plaintiffs
! have acquired by their judgment, and by
giving the defendant an opportunity to
plead, if he has any plea to make, to the
merits" 1t will thus be seen that Den
ton VS.. Moves adopts the old rule with
the modification, as above stated, and in
J subsequent cases involving a like ques-
ton. this rnle has been ollowed upon
tee principle of stare decisis, yet has been
:. : Frequently pronounced as harsh.
, Meaclam vs.. Dudley, = Wend. 0l4-
Williams vs.. Van N~alkenberg, 10
Howard Pr. IA.
Allen VS.. Stone, 10 Barb. $40.
Campbell VS.. Bristol, 10 WenU. III.
An examination of the authorities i'll
other States will show that the harsh
: ness of the rule as laid down in Dentoll
vs.. NOyes, supra, has been so modified
= that it is now the practice to relieve par
ties from judgments rendered against
them in consequence of the acts of unau-
thorized attorneys without regard to The
ability of the attorney to respond to his
assumed client for damages.
See Harshey VS.. BIackmarr, supra
and authorities therein cited.
: HandIev vs.. Jackson ct AL. 80 Pac
Rep. (Orel "l5.
We regard the reasoning and authori
ties in the caseo Harshcy vs.. Blacknlarl
! supra. as conclusive upon this point
Judge Dillon. who rendered the opinion
! in Hatshey vs.. Blackmarr, very %cleverl.
demonstrates the hArshness and i~njustic
u of the old rule. and in commenting upO'
that says: at obliges a person to he boun
~ by the unauthorized act of a mere strang
err. Il binds him by a Judgment of
court without a day in court. 1t relieve
the other party of a duty which in reas0
belongs to him, viz. to serve his prOcc>
~ and to see at his peril that his adverSar
-; is in Court. And it carries out this III
soundness by compelling the wror
- party to look to the attorney. True, re;
con and logic would say if an attornC
appeared for me without my knOwleds
-. or authority, express or implied, | shOuI
not we bound by the act if never rattle
or promptly d~iSavowed, and if the az
49, verse party, being ignorant of the want
authority. and carelesSly emitting to SER
,rortS>. or to require the attorney TO Sho
- his authority. has been damaged, he, al
-, not myself, should be the one to look
the attorney"
In the case of Handley VS.. Jackson
W al, supro. Wolverton, Justice. speaking
the sane point, uses the following Ian
uage: THE memorable logic of this gre
~ iuriSt has had it's effect. so that there
~ now no longer any doubt but that the e
forcement of a judgment obtained al
resting upon the unauthorized appea
ance of an attorney, may be restrained
equity irrespective of the question whet
- err the attorney is responsible or irrespo
49,. sible, or acted by procurement or coll
sion with his antagonist"
1t is clearly apparent from the reco
- that General Clarke acted in good faith
~ assuming that the brother of the respo
= dents had authority to employ him to
pear for them. 1t is equally clear that
respondents had never authorized ST
the ~
fraud between the appellants and G
eral Clarke. It is also clear that the
spondents had shown a good defense
the merits. 1t would therefore be uni
to the respondents to base their right
relief under these circumstances u
the ability of the attorney to answe
them for damages; for some doubt I
be expressed under the facts, as to VIII
er the attorney was liable for such da
ges.
We must also hold that under the
ol,uCo Of Sa.tiop IS of n1,r Practica