« PreviousContinue »
Judginent does not terminate the attorney's duty of loyalty to his client, and he should not act thereafter on the other side in the same case.57
If further proceedings are taken by a new attorney, service of papers for cross proceedings may be made on him, although there has been no formal substitution.68
The present weight of authority in New York is, that the principle that the party may change his attorney after judgment does not sanction the unsuccessful party in appealing to the Appellate Division from the judgment, by a new attorney without formal substitution,59
16. Appearance on appeal from judgment presumed authorized.]—Whether the implied power of the attorney, after judgment, will or will not justify him in appealing from the judgment without the instructions of his client,60 if he does proceed in his client's name and give notice of appeal, or respond to such a notice and contest the appeal,61 he will be presumed to have authority to do so, equally as when an attorney appears at the commencement of an action. 62
Hence, if the former or any new attorney serves or accepts notice of appeal from a judgment, the adverse party may proceed
57 Lawrence v. Harrison, Style, 426 (holding the attorney of the defendant liable to an action by the defendant for having, after judgment, procured the issue of process on the judgment against him).
58 Tard v. Sands (above), motion to vacate judgment and stay meanwhile. 58 Pensa r. Pensa, 3 Misc. 417, 23 N. Y. Supp. 186; Shuler v. Maxwell, 38 Hun, 240 (appeal dismissed, 101 N. Y. 657); contra, Webb v. Milne, 10 Civ. Pro. Rep. 27.
In Magnolia Metal Co. v. Sterlingworth, etc., Co., 37 App. Div. 366, 56 N. Y. Supp. 16, the court construed Rule 3 of the Court of Appeals, providing that the attorneys of the respective parties in the court below shall be deemed the attorneys of the same parties in the Court of Appeals, until others shall be “ retained or appointed, as not requiring an order of substitution upon a change of attorneys pending the taking of an appeal to that court.
The court's reasoning in the case last cited reveals as strong arguments in favor of a similar ruling upon an appeal taken in the first instance, as in the case of the further appeal.
Affirmative, Grosvenor v. Danforth, 16 Mass. 74; Bach v. Ballard, 13 La. 61 Code Civ. Pro., g 1300, requires the notice of appeal to be served upon the attorney for the adverse party; to such extent the statute continues the attorney's authority, and, of course, the duty with it of notifying client and thus saving his rights against default or prejudice from neglect.
82 Contra, Covill v. Phy, 24 III. 37 (continuance granted on application of defendant in error, on the ground that the attorney who appeared for the appellant had no new retainer to appear in the Supreme Court).
as if such attorney were authorized, without inquiring into his authority.
If, before judgment, a notice of appeal from an order is served, proceeding from an attorney not the attorney of record, the remedy is not to move to dismiss the appeal on the hearing, for the appeal papers will not show that no substitution has been made. A motion to dismiss on notice should be made.63
An attorney who has appeared specially upon a motion to vacate service of summons upon his client may be compelled to receive a notice of appeal from the order entered by him vacating the service. 64
17. Client bound by service after judgment on attorney, though neither appears.]-At common law the implied authority of an attorney in a suit for debt, to pursue the remedy of his client to satisfaction, does not terminate with judgment, but his client will be bound at least within the time limited (at common law a year and a day), by a notice of appeal from an uncollected judgment, served on the attorney.
Under the New York statute, service of the notice of appeal must be made upon the attorney for the adverse party if he is alive and can be found, unless he has been removed and notice of removal served upon the attorney for the appellant.
The same principle applies to the process necessary on a writ of error67 to a motion for a new trial; to a motion to open a
63 Thierry 1'. Crawford, 33 Hun, 366. Or, perhaps the notice thus signed may be returned with the objection that there has been no substitution. But this should not be done unless the notice is a nullity. Doe v. Branson, 6 Dowl. 490.
64 Graves r. Grahams, 18 Misc. 600, 43 N. Y. Supp. 508.
65 Nations r. Johnson, 24 How. (U. S.) 195 (saying this is the general rule in this country, proceedings in error or by appeal being regarded as the continuation of the litigation rather than a new action).
Dela pole v. Dick, 52 Law Times Rep. (N. S.) 457; 8. C., 33 Wkly. Rep. 585. (Whether, if the judgment had been fully executed, the solicitors' authority would continue until the time for appealing expired, was not decided.)
66 Code Civ. Pro., $8 1300, 1302.
67 Bacon 1. Hart, 1 Black, 38 (U. S.), (dictum); Love v. Hall, 3 Yerg, (Tenn.) 408 (holding the relation to continue for purposes of service of notice for proceedings in error, unless the relation is terminated by the attorney or the client; if not, he cannot disavow authority).
68 Grant r. White, 6 Cal. 55 (holding the service sufficient in an action at law, although the defendant had employed other attorneys meanwhile, but had given no notice of so doing to his adversary).
judgment entered on default ;69 and other motions incidental to the regularity or formal correctness of a judgment, such as a motion to readjust costs and require repayment of excess."
18. interlocutory proceedings overlapping judgment.]-As the authority of the attorney survives the decision for the purpose of entering judgment, and issuing execution, and securing the fruits of the litigation, he may be held to represent his client still for the purpose of charging his client with notice given to the attorney, required or allowed in consequence of interlocutory pro
69 Sheldon v. Riesdorph, 23 Minn. 518 (holding that the attorney's authority to enforce and collect the judgment enables him to act for the client in protecting and retaining it against any proceeding in the same action to avoid it).
Merriam v. Gordon, 17 Neb. 325, 27 N. W. Rep. 564 (holding service on attorney sufficient even after judgment, the motion being to vacate the judgment).
Miller v. Miller, 37 How. Pr. 1, holding that motion papers to set aside a judgment of divorce granted by default and for leave, etc., were properly served on the plaintiff's attorneys of record, although served nearly two years after the entry of the judgment, and after the attorneys had settled with their client and they themselves had dissolved partnership. One of the attorneys appeared specially to dispute the sufficiency of the service of the motion papers; but the motion was granted, nevertheless, on the authority of Drury i. Russell, 27 How. Pr. 130, which see stated in note —, on next page (below). Followed in Gebbard v. Gebbard, 25 Misc. 1, 54 N. Y. Supp. 407.
8. P., Flanders v. Sherman, 18 Wisc. 575, holding a non-resident client bound by an order setting aside a judgment when the notice of motion was served on the attorney of record, who appeared and resisted the motion, but gave no notice to his client. The court held that the statutory rule that pa pers are to be served on the attorney and not on the party, applies during the statutory period of two years after judgment in which the attorney has power to satisfy.
70 Goodman v. Guthman, 2 Wkly. Dig. 338, holding that a junior attaching creditor may apply on petition and notice for a readjustment of costs in a former attachment suit, and payment to himself of the excess; and service of such notice upon the attorney in the first action is sufficient, although he may have settled with his clients and have no further connection with the case.
In Swift v. Allen, 55 Ill. 303, however, it was held that notice of application to amend a final decree - in this case to insert a statement that the dismissal of the bill was because the action should be at law — did not bind the client, because served on the solicitor after the term expired at which the decree was rendered, the attorney not having appeared pursuant to the notice. The amendment was held a nullity.
So in Berthold v. Fox, 2 Minn. 51, an amendment of a judgment in replevin to make it conform with the verdict more than two years after entry, was held an error, because notice was served only on the attorney of record, who appeared specially, merely to object to the motion being heard. This decision seems clearly sound upon any view of the law, because the motion was after the lapse of two years.
The question of the power of the court to proceed in a new action in which its assertion of jurisdiction over the defendant depends on the service of process, in his absence, on his attorney of record in a former action, depends on other principles. Crellin v. Ely, 15 Fed. Rep. 420; Kamm v. Stark, 1 Sawy. 547; Hitner v. Suckley, 2 Wash. (Cir. Ct.) 465.
ceedings which overlap the judgment, such as the notice which a surety in an undertaking of bail may give to the plaintiff to proceed against the principal."
19. — service on attorney for party charged or discharged by judgment. ]— The courts have proceeded by analogy in applying the same principle of the implied authority to enforce or maintain a judgment he has recovered, to the case of the attorney for the unsuccessful party, and the attorney of a party who has de feated a recovery or procured a judgment to be satisfied, and have accordingly sustained proceedings to impair the effect of the judg. ment or vacate the satisfaction, when commenced by notice given to such attorney."
In this class of cases the power of the court to proceed on such notice is also supported by the general principle which recognizes its authority over its own process and records.73
20. Specific property; fund in court.]— The principle that the attorney has implied authority to receive payment is the result of the implication arising upon a general retainer to bring an action for the collection of a debt or the enforcement of a money demand.
It does not sanction the payment to or acknowledgment of satisfaction by an attorney of moneys in court or other specific funds directed either by statute or by the terms of an order or judgment to be paid or delivered to the party.
In such actions the authority of the attorney is presumed to estend to all those proceedings after judgment, at least within the two years' period, which are involved in the maintenance of the judgment against attack, or necessary to be taken by him to enforce the judgment; but not to receiving payment of sums directed
71 Toles v. Adee, 84 N. Y. 222, 241; S. P., Drury v. Russell, 27 How. Pr. 130, where service by defendant's attorney of papers for a motion to set aside an attachment and an order for publication, by delivery to plaintiff's attorney some four years after entry of judgment, was held sufficient. (Citing Lusk č. Hastings, i Hill, 656, 660.) Followed in Miller v. Miller, 37 How. Pr. l.
72 Wardell v. Eden, 2 Johns. Cas. 121 (holding that where an attorney was employed even only to confess judgment, service on the party of notice of motion to vacate satisfaction, was irregular; but service on the attorney also, saved the motion).
73 Thus in Lee v. Brown, 6 Johns. 132, service of order to show cause in 1810, why judgment obtained in 1803 should not be satisfied on the record, the plaintiff residing in England, was directed to be served by delivery to the attorney of record, and putting up copy in clerk's office.
by it to be distributed, nor to proceedings to modify the judgment after the lapse of the two years by impairing its effect in favor of his client, or enlarging its effect against his client by further directions in the nature of additional relief.
21. Actual entry of final judgment the test.]— It is the actual entry of judgment, not the decision on which the entry is founded, that is referred to in what is here said on this subject. Motions for judgment and motions in arrest, even after judgment has been ordered, are within the implied authority of the attorney of record; and service on him, although he has meanwhile been removed without notice to the adverse parties, will bind the client, even though the attorney failed to appear pursuant to the notice. 74
22. Effect of statute as to proceedings after judgment.]— The perplexing question frequently arising in the absence of any statutory regulation as to the proper service of notice of proceedings after judgment, is commonly removed by the codes of procedure, by provisions in the regulations affecting such proceedings, allowing service on the attorney of record, or defining the cases in which such service may be made.15
74 Lusk v. Hastings, 1 Hill (N. Y.), 656.
The question whether the implied authority of the attorney extends after judgment in respect to surplus moneys or other funds in the court, also involves some other principles. See paragraph 20; also, volume 2, Payment into Court, and Reference.
75 Thus under the N. Y. Code Civ. Pro., § 1378, notice of motion for leave to issue execution after the lapse of five years from entry of final judgment, must be served personally on the adverse party if he is a resident, and personal service can, with reasonable diligence, be made in the State, otherwise a court order should be taken, directing the manner of service. This section applies to the docketing of a decree of a surrogate and the issuance of an execution thereon. People v. Woodbury, 70 App. Div. 416, 75 N. Y. Supp. 236.
Notice of motion for leave to issue execution after the expiration of one year from the death of the debtor in a money judgment, must be given to the persons whose interest in the property will be affected by an execution sale, and also to the executor or administrator, either personally or by taking a court order to show cause prescribing the manner of service. (N. Y. Code Civ. Pro., & 1381.)
Notice of application to the surrogate for leave to issue execution upon a judgment against an executor or administrator in his representative capacity, must be personally served upon the executor or administrator, unless it appears that service cannot be made with due diligence. In such case, a surrogate's order to show cause should be taken, directing as to whom and in what manner notice should be given. (N. Y. Code Civ. Pro., $ 1826.)
Notice of application for leave to sue on a judgment for a sum of money,