Dillon v. Rand

• Decision Date: 07 November 1890
• Citation: 25 P. 185,15 Colo. 372
• Parties: DILLON et al. v. RAND.
• Court: Colorado Supreme Court

25 P. 185

15 Colo. 372

DILLON et al. v. RAND.

Supreme Court of Colorado

November 7, 1890

Error to Arapahoe county court.

George Rand, plaintiff below, brought suit against 'Levi Dillon Isaiah Dillon, M. F. Dillon, and other sons of said Levi Dillon and Isaiah Dillon, whose names are to plaintiff unknown, as Dillon Brothers, and William F. Marrs, George W Middleton, Edward Hunter, partners as Marrs, Middleton &amp Hunter.' The relief sought was by judgment in personam. None of the defendants appear to have been served with summons. The defendants Marrs, Middleton &amp Hunter, however, appeared by P. L. Palmer, Esq., their attorney, and filed their answer. Subsequently, Mr. Palmer also entered his appearance as attorney for the defendants Levi Dillon, Isaiah Dillon, M. F. Dillon, and Leo Dillon; and thereafter said defendants were ruled to answer the complaint. Before the expiration of said rule, George C Norris, Esq., appeared specially as attorney for the Dillons, and filed a motion to vacate the appearance entered for them by Mr. Palmer, on the ground that Palmer had no authority to appear for them or either of them. Before disposing of the motion to vacate the appearance of Palmer for the Dillons, the court entered default against three of them. Leave was granted to plaintiff to file affidavits in answer thereto, but he did not do so. Upon this showing, the court below over ruled the motion of the Dillons to vacate the appearance entered for them by Mr. Palmer as their attorney, and proceeded to the trial of the issue between the plaintiff and the defendants who had answered, and to the assessment of damages against the Dillons, upon the default entered against them. The Dillons bring the case to this court by writ of error. The motion to vacate was supported by two affidavits. The affidavit of Mr. Palmer himself states that he was the attorney for the defendants Marrs, Middleton & Hunter in this suit; that he entered his appearance for Dillon Bros., at the request of Mr. Hunter of said firm, and upon the assurance of Mr. Hunter that he (Hunter) had full authority to cause the appearance of Dillon Bros., to be entered; that he was not retained by Dillon Bros., but relied on the assurance of Hunter as aforesaid. The affidavit of M. F. Dillon states positively that he is a member of the firm of Dillon Bros.; that neither he nor any member of said firm ever in any way either directly or indirectly authorized any person to enter the appearance of said firm of Dillon Bros., or any of the members thereof, in any suit brought by the said George Rand in the state of Colorado or elsewhere; nor have they or either of said parties ever authorized the firm of Marrs, Middleton & Hunter, or any member of said firm, to employ counsel for them or either of them, or to enter their appearance in any such suit. The affidavit is subscribed and sworn to before the clerk of the county court of McLean county, Ill., and is attested by said clerk under the seal of said court.

Syllabus by the Court

1. The authority of an attorney to appear for a party to an action in a court of record may be controverted while the action is pending.

2. The question of such authority may be raised upon due notice by sworn petition, or by motion supported by affidavit; and, if an issue be made upon such petition or motion, the same may be tried and determined by or under direction of the court as other issues of fact.

3. Where parties have not been served with summons, it is irregular to grant default against them without first disposing of a motion on file to vacate an appearance by attorney in their behalf.

4. The Code provides for the taking and certification of...