Faughnan v. City of Elizabeth

• Decision Date: 07 November 1895
• Citation: 58 N.J.L. 309,33 A. 212
• Parties: FAUGHNAN v. CITY OF ELIZABETH.
• Court: New Jersey Supreme Court

33 A. 212

58 N.J.L. 309

FAUGHNAN

v. CITY OF ELIZABETH.

Supreme Court of New Jersey.

Nov. 7, 1895.

(Syllabus by the Court.)

Action by Thomas Faughnan against the city of Elizabeth. Heard on rule to show cause why satisfaction of a judgment for plaintiff should not be vacated. Rule sustained conditionally.

The judgment was recovered by Thomas Faughnan against the city of Elizabeth, January 8, 1882. On December 21, 1891, Thorndike D. Hodges, the attorney of record of Faughnan, executed a warrant of attorney to the clerk requiring him to enter satisfaction of the judgment, which the clerk did on January 18, 1892, pursuant to section 24 of the act concerning judgments (Revision, p. 520). It appears by affidavits taken under the rule that Hodges delivered the warrant of attorney to satisfy the judgment to the comptroller of the city, who paid him a sum of money equaling 85 per cent. of the principal and interest then due on the judgment, and that Hodges has not accounted with his client for any part of the money so received.

Argued June term, 1895, before VAN SYCKEL, LIPPINCOTT, and MAGIE, JJ.

J. A. Beecher, for plaintiff.

J. C. Connolly, for defendant.

MAGIE, J. A satisfaction of a judgment obtained by fraud or given by mistake will be vacated. Keogh v. Delany, 40 N. J. Law, 97; Ackerman v. Ackerman, 44 N. J. Law, 173; Harrison v. Maxwell, Id. 316. The contention in this case is that the satisfaction should be vacated, because the attorney had no power to execute the warrant by virtue of which the satisfaction was entered. When a defendant has not been misled by the attorney's apparent power, and no rights of third parties are affected, I see no reason why a satisfaction should not be vacated if wrong has been done by its entry, even though it was not obtained by fraud.

It is not claimed that the attorney of record may not receive the money due on the judgment, and satisfy it. His power to do so was early settled in this state, and the legislature has prescribed the mode in which he may enter satisfaction upon the record either personally or by his sealed warrant directed to the clerk, and authorizing him to enter it. Wyckoff v. Bergen, 1 N. J. Law, 24.8; Revision, pp. 523, 524, §§ 22, 24. But the claim is that, when Hodges gave the warrant in this case, he had lost the power to give it, because he had then removed his residence from this state. This claim is put upon the provisions of the tenth rule of this court, which provides that "no attorney of this court not actually residing in this state shall appear to act as attorney on record in any case in any of the courts of this state." It is plain that this rule prohibits a nonresident attorney of this court from commencing any action or appearing to defend any action as attorney of record in this court. But if, while resident, an attorney of this court has appeared as attorney of record in an action, will his subsequent change of residence ipso facto revoke and annul his power to act for his client? I do not think the rule in question was intended to produce such a result. Its terms, properly construed, refer to the original appearance of the attorney by which he becomes attorney of record, and not to every subsequent act as such attorney. Removal of residence, therefore, does not deprive the attorney of the powers conferred by his original warrant of attorney until his client, of his own motion, or upon warning from his opponent under the provisions of section 6 of the practice act, substitutes another in his place as attorney. But, if I had taken a different view of the rule, I should still be of opinion that the plaintiff has not sustained his claim in this respect. He has made it appear that Hodges was a resident of this state when the action was commenced and judgment was obtained, and for a long time after. While his affidavits show that Hodges left the house in this state in which he had been residing before...