I cannot concur in the preceding opinions.
1. The defendant, in his notice of appeal from the judgment of the justice to the County Court does not claim, as a ground of appeal, that the return by the constable of the service of the summons was insufficient to show that it was properly served by leaving a copy thereof for him as authorized by section 15 (under article 2) of title 4, chapter 2, part 3 of the Revised Statutes (see 2 R.S., 228); and his counsel, on the present appeal, in his statement of the case, substantially concedes that it was properly served. He says: "The only question in the case arises over the authority to appear by one Crandall before the justice for the defendant on the return day of the summons, the summons having been only served by copy." Hence it must now be assumed that there was a sufficient service of the summons on the defendant in one of the modes prescribed by law.
2. It is provided by section 41 (under article 3) of the same title that "every defendant in a suit, except persons under twenty-one years of age, may appear and defend the same in person or by attorney," and by section 44 of that article it is declared that "a party authorized to appear by attorney may appoint any person to act as such attorney." By the next section (§ 45), it is further declared as follows, viz.: "The authority to appear by attorney may be either written or verbal, and shall in all cases be proved, either by the attorney *Page 191 himself or other competent testimony, unless admitted by the opposite party; and the justice shall not permit any person to appear for another without such proof or admission." It is then provided, by section 47 (under article 4) of the same title, that "at the time of the first appearance of the parties before the justice, either upon the return of process or their voluntary appearance to join issue, the pleadings of the parties shall be made and the issue joined; and where both parties have appeared, an issue shall be joined before any adjournment shall be had, except where the defendant shall have appeared upon a warrant," as thereinafter provided. (See R.S., vol. 2, pp. 232, 233.)
It thus appears that it was competent for the justice, upon the return of the summons, to recognize the appearance of the defendant, either in person, or by attorney on proof of his authority, as prescribed by section 45, or by the admission thereof by the plaintiff. There is nothing in any of the provisions to which I have referred that limits such recognition to a case where the summons was personally served. The evidence required is the same whether the service is personal or not. Now it becomes important to ascertain what is stated in the original return, and subsequently in the amended return of the justice, to determine whether any thing is returned in them, or either of them, to show error by him in the rendition of the judgment from which the appeal to the County Court was taken. The original return, after stating that the summons issued on the eighth day of February and returnable on the 18th day of February, 1869, was returned "served, copy left the 9th day of February, 1869, by David Wallace, constable," with his return duly indorsed, states as follows, viz.: "At the time and place last mentioned the parties appeared and joined issue." It then, after setting forth the plaintiffs' complaint and the defendant's answer, contains the following statement: "The issue being thus joined the cause was adjourned by consent of the parties to the 9th day of March, 1869, at eleven o'clock A.M., at this place. At the time and place last aforesaid the plaintiffs again appeared, and the *Page 192 defendant did not appear, when the court waited twenty-five minutes past twelve o'clock, M., at which time the plaintiffs, to maintain their action, called one of the plaintiffs, who testified as follows." His testimony is detailed, and was sufficient to warrant a recovery. It is then said that "the testimony here closed;" that the testimony so detailed was all that was given on the trial, and that the justice thereupon rendered his judgment. There cannot be any doubt, upon the facts so returned, of the validity of the judgment. The further or amended return stated:
1. That "the defendant did not appear in person, but Silas Crandall appeared for him."
2. "That Silas Crandall appeared for the defendant and answered for him."
3. That the said "Silas Crandall did not swear to his authority to appear for the defendant, and he did not, in any manner, prove his authority to appear for the defendant in the said action at the time of the joining of the issue in the action."
Those additional facts do not change the substance and effect of the matter stated in the original return. They show that the authority of Crandall to appear for the defendant on the return of the summons and joining issue was not "proved, either by the attorney himself or other competent testimony," as required by section 45 above set forth, but they do not show that his authority so to appear was not admitted by the opposite party (the plaintiffs); on the contrary, the facts returned of the appearance of the plaintiffs and Crandall, the putting in the answer for the defendant by Crandall, the acceptance of thatanswer by the plaintiffs, the adjournment of the trial by the consent of the plaintiffs and Crandall to a future day, and the proceeding of the plaintiffs on the adjournment to prove the facts alleged in the complaint, and put in issue by the said answer, constitute as full and unequivocal an admission by them of Crandall's authority to appear as if the return had stated in express terms that it was so admitted. Such admission, by the terms of that section, dispensed with *Page 193 the necessity of the proof or testimony thereby required in case it had not been given, and the justice was, under the last clause of the section, by necessary implication, resulting from those facts, authorized to permit Crandall to appear for the defendant. Hence it follows that the returns separately or collectively do not show any error in the rendition of the judgment, nor do they show that Crandall in fact had no authority to appear for the defendant, and I will add that there is nothing before us to justify or warrant the conclusion or inference, or even a well-founded, or indeed any justifiable suspicion, that he did not have full authority to do all and every thing that was done by him. All that appears on that question is contained in the defendant's notice of appeal to the County Court, in which he states, among other grounds upon which his appeal was founded, as his fifth ground, as follows, viz.: "5. That this appeal is founded on errors of fact to be established by affidavits, to be hereafter served, and other proofs;" but it does not appear that such affidavits or other proofs were ever served. It is true that there is printed in the case an affidavit on which the county judge made an order directing a further or amended return as to the matters stated in it, and that the defendant therein, after stating that the said justice had not in said return correctly returned all the proceedings had before him, said that he did not appear in the action before the justice or authorize any other person to appear for him in the action before the justice; but that affidavit does not form any part of the justice's return. The plaintiffs cannot be affected by it.
It is material to notice, in this connection, that the defendant does not, in either of the six grounds on which he says, in his notice of appeal, that his appeal is founded, state or in any way intimate that Crandall had no authority to appear or answer for him on the return of the summons, and indeed he does not even allege or state in terms that he did not himself appear. All that is alleged on that subject is contained in the second ground stated, that "the justice had no jurisdiction of the action or of the person of the defendant," and it is apparent, *Page 194 I think, that the real ground on which his claim for reversal of the judgment appealed from was to be based was the errors of fact which he intended to set forth in an affidavit or other proof subsequently to be served, and thereby seek to make a case for relief under section 366 of the Code. These, however, as before stated, were never served, and there is no foundation whatever laid or any theory whatever presented to us showing any error infact. It is consequently unnecessary to inquire whether it would have been a sufficient ground for the reversal of the judgment if it had been affirmatively shown by the defendant to the County Court that he he had not in fact authorized Crandall to appear for him.
It appears to be conceded that if the returns, or either of them, had shown that the authority of Crandall to appear for the defendant had been proven either by Crandall himself or other competent testimony, then the justice would have been authorized to permit his appearance, and would have had jurisdiction to take an answer and render a valid judgment upon the requisite proof of the cause of action alleged. I am unable to appreciate on what principle the jurisdiction can be maintained, and the validity of the judgment can be supported and sustained in such case, any more than by the admission of the plaintiff of such authority. The requirement of the section referred to is not that such authority shall be proven in all cases, but that proof of it must be so given "unless admitted by the opposite party." It follows that the proof of the authority is of no greater effect and confers no more or greater power on the justice than anadmission by the plaintiff of the fact; but, on the contrary, such admission authorizes the justice to dispense with the proof directed and required to be given in the absence of such admission. Conceding it to be true, as claimed on behalf of the defendant, that the requirement of the section is for the protection and security of the plaintiff, he certainly can require no better evidence of the authority of an attorney to appear for the defendant than his own admission; but be that as it may, his admission renders any other proof unnecessary. Again, if it be *Page 195 conceded that an unauthorized appearance for the defendant would invalidate a judgment (as to which it is not necessary to express an opinion), then no evidence given by the person professing to be his attorney, whether given by himself or by other competent testimony, would, if untrue, be more effectual than an admission of the plaintiff in establishing or proving the authority. Hence the case, as presented by the returns, showing such admission, is not different in its legal effect than it would have been if Crandall had sworn to his authority or had introduced proof, in the opinion of the justice, sufficient to prove it, and if in either case the authority did not in fact exist, the returns, without extraneous proof to contradict or impeach them (assuming such proof could be given), would, nevertheless, show that the judgment was properly recovered and valid.
My conclusion, therefore, is that the judgment appealed from should be affirmed, with costs.
For reversal: EARL, DWIGHT and REYNOLDS, CC. For affirmance: LOTT, Ch. C., and GRAY, C.
Judgments of the General Term of the County Court and of the Justice's Court reversed.