Stocking v. Hanson

These two cases depend upon precisely the same question, to wit, the authority of the attorney who, in the first, assumed to act for the executors and devisees of the original plaintiff, in procuring them to be substituted as plaintiffs after his death, and his authority to appear for, and give the court jurisdiction over them in the second, in which they were made defendants. Each of the executors and devisees, by affidavit, denies having given any such *211authority, or having communicated in any way with or known said attorney, or having known or heard of such actions, or either of them, until within a year before the motions to vacate the judgments and proceedings were made. In opposition to this is the affidavit of J. C. Whitney to the fact that his firm was authorized by the original plaintiff in the first action to bring the action, and that they employed the attorneys who brought it, and also employed the attorney who procured the substitution to be made; and also employed him to defend the second action; and that his firm, after the death of De Lafayette Stocking, “was employed and acted as the agent of the executors of said De Lafayette Stocking in and about the probate of the will of said De Lafayette Stocking in said county, and in and about the real estate of said De Lafayette Stocking in said county.” In another affidavit he, with one of his partners, denies that his firm ever had authority from the executors or devisees to employ any attorney for them in such matter.

There must have been a misunderstanding by the attorney as to the fact of his employment, or by the firm mentioned as to their authority to employ him for the executors and devisees. There is nothing in the first affidavit of Whitney to suggest authority in his firm to bind. the devisees in any matter, or to bind the executors in so important a matter as subjecting them to the jurisdiction of a court. Authority to do that must be precise and definite. The statement in that affidavit that his firm was agent of the executors in and about the real estate of saidDe Lafayette Stocking does not tend to show it; and the presumption of authority in the attorney arising from his professional character and acts is fully removed by the affidavits in support of the motions.

There, then, are two judgments against the executors and devisees which are void for want of jurisdiction in the court to render them ; and as they appear on the record to be valid, the parties have a right that they be removed or vacated. A party may doubtless lose that right by laches, — that is, by so long delay in applying for it that others, innocently relying on the record and apparent validity of the judgment, have placed themselves in such position that to vacate the judgment will operate to defraud them; but to give delay *212that effect on the rights of the party it must be with notice of the judgment, or, at least, of the action, so that the delay may be deemed a fault. In these cases the delay after notice was not unreasonable, and it is not shown that during that time any one acted in reliance upon the judgments. The applications should have been granted.

Orders reversed.