Howard v. Smith

I think the court below erred in directing a verdict for the plantiff:

First. The defendant’s counsel asked the court to submit the questions to the jury as one oí fact, whether there was or was not authority on the part of the California attorneys (Messrs. Chetwood, Edwards, Rose and Turk), to appear for the defendant in the action (in California), resulting in the judgment now sued upon. The request was denied, and defendant’s counsel excepted.

The record of the judgment shows no original process issued against, or served upon defendant, but from the record it appears, that the complaint and answer in the action were filed on the same day (May 6th, 1851), and the answer purports to have been signed by Chetwood, Edwards, Rose and Turk, attorneys for defendant.

This is all that is established by the record, in regard to the appearance of defendant in the action, and upon this, the plaintiff rested his case. Subsequently the defendant *310testified in substance, u that he never saw either of the firm of Chetwood, Edwards, Rose & Turk, although he knew of them by name. That he never employed this firm to appear for him in this action, and never employed, nor authorized any one to appeal’ for him in this suit, nor to defend the same, and that he did not know of the existence of the suit at the time of the judgment. He says: ‘I first heard there wras such a suit, when this action was commenced, about a year ago, had never heard of the California suit before that.’ That the only agent he had in California at the time, was one Edward Rogers, whom he sent out to California as his special agent, to attend to his business there. That he never heard of this judgment until he was sued here. That he never was asked to pay this judgment to Mr. Howard (plaintiff) or any one, before being sued.”

On the cross-examination and afterwards plaintiff introduced letters and accounts and other evidence, that tended to establish that the firm of Chetwood, Edwards, Rose and Turk, was employed by Beck & Palmer, shipping agents with thé consent of Edward Rogers the agent of defendant, but no positive testimony establishes their employment with the consent or direction of said Edward Rogers. It appeared from the evidence, that at the time of the trial, Edward Rogers was dead. I am clearly of the opinion, that this question of authority to the attorneys who appeared for the defendant in the California action was, or became a contested question of fact, upon which there was evidence on both sides.

The testimony of the defendant was most positive and clear on the subject of authority, and I think, fully established the fact, that these attorneys were not retained or employed by him personally in that case, nor by his agent (Rogers) with his (defendant’s) knowledge or consent. The testimony opposed to this statement of defendant, raised the hypothesis or tended to establish the fact, that the attorneys derived their authority to appear from Beck & Palmer, who derived their *311authority to employ and retain them, from Edward Rogers, but to say, the most of this proof adduced by plaintiff, to contradict or to rebut the testimony of defendant on this point, it was vague and uncertain, and in my view of the case, not of sufficient weight and certainty to justify the conclusion of the court below, that the authority of the attorneys Chetwood, Edwards, Rose & Turk, to appear for the defendants, was so fuhy and conclusively established, that the question of such authority need not be submitted to the j ury as a question of fact. The decision of questions of fact in a case by the court, when uncontested, or when clearly established by the weight of testimony, narrow the issues and reduces the number of questions for the consideration of the jury, and thus lessen its labors in reaching a verdict, and in this view, are to be favored and sustained to the full extent of the rules of law applicable to jury trials.

The rulings of the court, however, in such cases are often subject to review, and reviewed by an appellate court although a decision by the jury would have been final upon the. same facts.

I hold, that ah questions of fact, that are contested to that degree by the evidence that sensible men might conscientiously arrive at different conclusions, upon the same evidence, should be submitted to the decision of a jury.

The rule of law, I hold to be the same as in the case of directing a verdict by the court. The court has a right so to direct when the facts are so clearly established on the trial, or the weight of evidence so strong, that if on submission to a jury it found a verdict against them, the court should set it aside as against the evidence. Applying this rule to this case, I do not think, if the question of authority had been submitted, and a jury had found, that there was no authority, and" consequently, found for the defendant, that any court would set aside their verdict as against evidence. I am of the opinion, it was clearly a question that under the evidence, should have been submitted to the consideration *312and decision of the jury, and it was error on the part of the court to refuse so to do. I also hold, as a conclusion of law, that whenever it appears by the record of a judgment of, a sister state, that the defendant appeared by attorney, it is presumptive evidence of the fact, but in such a case, the defendant may rebut this presumption by proof, that the attorney named in the record, never had any authority to appear for him, in other words, “ notwithstanding the recital of the record, he may disprove the authority of the attorney to appear.”

The cases cited by defendant’s counsel on the argument are, in my opinion conclusive as to the law in such cases (Shumway agt. Stillman, 6 Wend., 447, 453; Starbude agt. Murray, 5 Wend., 148; Levy agt. Levy, 1 Hill, 597).

The opinion and decision of Chief Justices Savage and Bronson, in these cases are not weakened by the guesses and dicta of other judges in the cases cited by plaintiff’s counsel.

In the case of Bolton agt. Jacks, (6 Robt., 198, &c.,) there is a very full review of cases touching this point. My attention has been called to a late case decided in the court of appeals (Brown agt. Nichols, 42 N. Y., 27). That case arose upon and related to a judgment in this state, and the judges reviewing the same recognize a distinction, and that a different rule applies to judgments of another state. Although there is a diversity of opinion among the judges before whom the case at bar has been heard, as to the questions arising therein, we do not consider the same as effected* by the decision in Brown agt. Nichols. As for myself, I agree with the views of Judge G-boveb, as expressed in his dissenting opinion, so far as he discusses this question of the affect of appearance, and I believe, these views should be, and will be finally adopted as the rule in like cases.

In regard to the other principal exceptions in this case, a majority .of the members of this court holds, that there was no error in the rulings of the court below, and there*313fore, their discussion has been avoided, and the present decision is based entirely upon the question of appearance in the California court.

The exception to the ruling of the court below upon that question should be sustained, and a new trial ordered with costs to the defendant, to abide the event.