Blodget v. Conklin & Arnold

Welles, Justice.

The plaintiff appears to have been perfectly regular in obtaining the judgment. No collusion is shown between the attorney first employed, Mr. Robinson, upon whose offer the judgment was entered, and the plaintiff*. Conklin and Robinson both show, in their affidavits, that the latter supposed Arnold was authorized to employ him for both defendants. Nor is there anything to show collusion between the plaintiff and the defendant Arnold. Enough appears to show hostility between the two defendants, and that Arnold desired, and that his measures were taken with a view to give the plaintiff a preference over the other, or some other creditors of the firm, and to prevent Conklin from putting in a do-fence. But I cannot discover sufficient evidence in the papers to establish the plaintiff’s connection with such intention, or to bring home to him notice thereof. I do not discover that the plaintiff occupies any other position than that of a vigilant creditor, seeking the collection of his debt according to the forms of law.

The fact that Conklin had not given Robinson authority to appear for him did not render the judgment irregular. The summons had been served personally on both the defendants, and no collusion on the part of the plaintiff with any one is established. Mr. Robinson is an attorney and counsellor of this court, and as attorney for both the.defendants served notice of retainer, and afterward the offer that the plaintiff take judgment., The plaintiff had no right to disregard these papers so served by Robinson. If collusion between the plaintiff or his attorney, and Arnold; or the attorney whom he employed, had been satisfactorily established, the case would have been entirely different, and the judgment would, in that case, be set aside as against Conklin. (Denton and others agt. Noyes, 6 Johns. R. 296; Sterne agt. Bentley and McLaughlin, 3 How. Pr. R. 331.)

But as between Conklin, and Mr, Robinson,, there was no authority for the latter to appear and take any step which would result in a judgment. It has long been settled that one partner cannot confess judgment to be entered against his co-partner. (Crane and others agt. French and Wilkin, and another case, 1 Wend. R. 311, and cases there cited.)

Where, however, the defendant is regularly brought into court by process, and an attorney of the court appears for him, his acts are valid and binding upon the party until he is superseded, unless collusion is shown; and the remedy of the party is against the attorney, for. appearing, and acting in his name without authority.

WThere it appears that the. attorney is irresponsible, the court, in order to protect, the defendant, in case he swears to merits, will let him, in. to defend,, all owing, the judgment, to stand as security. In this, case Conklin, has sworn to merits;, and although there is no allegation of any want of responsibility on the part of Mr. Robinson, yet as it is conceded that he has acted in good faith, and as there appears to be no disposition to involve him in any pecuniary responsibility, I am disposed to order that the defendant Conklin be let in to answer the complaint and defend the action, the judgment and levy in the mean time to stand as security. All further proceedings thereon on the part of the plaintiff to be stayed until the further order of the court, on payment of seven dollars costs of opposing this motion.