Corbitt v. Timmerman

• Decision Date: 01 June 1893
• Citation: 55 N.W. 437,95 Mich. 581
• Court: Michigan Supreme Court
• Parties: CORBITT v. TIMMERMAN et al.

55 N.W. 437

95 Mich. 581

CORBITT v. TIMMERMAN et al.

Supreme Court of Michigan

June 1, 1893

Appeal from circuit court, Kent county; in chancery; Robert M Montgomery, Judge.

Suit by Daniel E. Corbitt against Leonard Timmerman and Johanna Timmerman. From a decree for complainant, defendants appeal. Affirmed.

Frank G. Holmes, for appellants.

Daniel E. Corbitt, in pro. per.

GRANT J., (after stating the facts.)

The conclusion reached by the court below, that the conveyance was fraudulent, is correct, and is fully sustained by the evidence. The judgment at law is attacked on the ground that Mr. Timmerman was not served with process, and that he had authorized no attorney to appear for him. Mr. Taylor, the codefendant with Timmerman, was an attorney, and a member of the firm of Taylor & McBride, who appeared for the defendants in that suit. Service was made upon Taylor, and, upon the same day, Taylor & McBride entered their appearance, served notice thereof upon the plaintiff, who was his own attorney and four days thereafter filed and served a plea of the general issue, with notice of special matters of defense. After the appearance of the defendants by their attorneys, no steps were taken to serve Timmerman with a copy of the declaration and notice to plead,-the process by which suit was commenced. The presumption is that attorneys are duly authorized to appear, even where there is an appearance without service of process. Arnold v Nye, 23 Mich. 286. It is undoubtedly the general rule that a judgment resting upon the unauthorized appearance of an attorney will be set aside upon motion, and that equity will enjoin the collection of a judgment so procured when the right to move to set aside the judgment is lost. These remedies exist regardless of the solvency or insolvency of the attorney. 1 Black, Judgm. �� 272, 374, 325. Had defendant Timmerman applied to the court to vacate the judgment, the court should have set it aside, upon satisfactory proof that the attorneys appeared without his authority, and that their action was not subsequently ratified by him. The authorities are not uniform as to whether such judgment can be attacked collaterally. Freeman states the rule to be that "this presumption is, in a collateral proceeding, not merely prima facie; it is conclusive." Freem. Judgm. � 128. In Ferguson v. Crawford, 70 N.Y. 253, after a careful review of the authorities by Justice Rapallo, he ...