Berthold v. Fox
| Decision Date | 11 September 1874 |
| Citation | 21 Minn. 51 |
| Parties | Pierre A. Berthold v. Patrick Fox & others |
| Court | Minnesota Supreme Court |
Appeal by plaintiff, and by one Schulenburg, from an order of the district court for Washington county, Crosby, J., presiding allowing an amendment of a judgment.
The appeal of Schulenburg dismissed; upon the appeal of Berthold the order of the district court reversed.
L. R Cornman, for appellant Berthold.
McCluer & Marsh, for appellant Schulenburg.
H. N Setzer and H. R. Murdock, for respondents.
The plaintiff brought this action to recover possession of a raft of logs, and obtained possession, pending suit, by means of the provisional remedy designated in the statute as claim and delivery, the undertaking required by law being executed by one Frederick Schulenburg. The defendants in their answer claimed a return of the property. A jury trial was had, resulting in a verdict as follows: "We, the jury, find for the defendants, and for the return of the raft taken by the plaintiff; and in case a return can not be had, we find the value of the said raft to be $ 2,700, and damages for detaining the same to be $ 817.95, making a total of $ 3,517.95." Upon this verdict, a judgment was entered that the defendants recover of plaintiff the sum of $ 3,688.72, being the amount of the verdict with interest and taxed costs. This judgment was entered on June 18, 1870.
On November 2, 1872, the defendants' attorney served on L. R. Cornman, Esq., one of the firm of Cornman & Stickney, attorneys of record for the plaintiff in the action, a notice of motion that the judgment be so amended as to conform to the verdict, and to be in the alternative for the return of the property to the defendants, and, in case such return can not be had, then for the value thereof with damages, etc., as found by the verdict. This notice was returned by Mr. Cornman, for the reason, as stated by him in writing thereupon, that "neither the said firm of Cornman & Stickney, nor the undersigned, are attorneys for the plaintiff, Pierre A. Berthold, and that no such firm as Cornman & Stickney exists." At the hearing of the motion, Mr. Cornman appeared specially, and objected to the motion being heard, for the reason that the notice of the motion had only been served on him, and that his authority to act for the plaintiff ceased with the judgment. Mr. Cornman also read an affidavit, by which, and by the exhibits attached thereto, it appeared that on August 2, 1870, the defendants caused execution to be issued on the judgment, which was returned unsatisfied; that about March 1, 1871, the defendants brought suit in the circuit court for Polk county, in the state of Wisconsin, against Schulenburg, upon the undertaking before mentioned. That action was tried by the court, and resulted in a judgment for defendant Schulenburg, the court holding that the original judgment in this action was irregular, because it did not award a return of the property, as claimed in the answer; that by reason of such omission, Berthold, the original plaintiff, had been deprived of the right of satisfying the judgment by return of the property, and the liability of Schulenburg had been correspondingly increased; that therefore Schulenburg, being a surety for Berthold, was discharged. Messrs. Baker & Spooner appeared at the hearing and opposed the motion, on behalf of Schulenburg. The court found, what does not seem to be disputed, that the only authority Mr. Cornman had to act for the plaintiff was the fact that he was one of the attorneys in the action, and that the irregularity in the entry of the judgment was caused by the mistake of the clerk; and ordered that the judgment be corrected in conformity with the verdict. The court also held that Schulenburg had no standing in court to oppose the correction. From this order, both Berthold the plaintiff and Schulenburg appeal.
At common law, the authority of an attorney to represent his client in an action ceased upon the entry of judgment; but for a year and a day thereafter he had authority to act for his client in enforcing the judgment by execution, etc. Com. Dig. Attorney, B. 10; 2 Inst. 378; 1 Tidd Pr. 93. By Gen. Stat. ch. 88, § 9, the attorney has authority to receive payment of the judgment, and upon such payment to enter satisfaction, within two years after entry of judgment. But neither the common law nor any statute continues after judgment the authority of the attorney for the defeated party, the judgment debtor, or the defendant in the judgment, as he is aptly styled.
After judgment entered, the judgment creditor may still need to use process of law to enforce collection, and it is proper that his attorney's authority should continue for this purpose, and for the purpose of opposing any steps that may be taken in behalf of the defendant to reverse the judgment by appeal, or in any way to prevent its collection. But after judgment, unless the defendant, by appeal or otherwise, seeks a reversal or modification thereof, or a stay of proceedings thereon, no reason is apparent why he should be represented by attorney, or why the authority of his attorney in the action should be presumed to continue. All that remains to be done in the action is the enforcing of the judgment. The regular proceedings for this purpose are ex parte, and involve no previous notice to the defendant; and whenever service of any paper or process is required, it must be on the defendant personally, and not on his attorney. The execution issues of course, and a copy thereof is to be served on defendant per...
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