Hager v. Cochran
| Decision Date | 18 December 1886 |
| Parties | HAGER, EX'X, ETC., v. COCHRAN AND OTHERS, TO USE, ETC. |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Washington county.
Scire facias on judgment.
Alex. Armstrong and N. B. Scott, Jr., for appellant, Hager, Ex'x, etc.
Albert Small, for appellees, Cochran and others, to Use, etc.
The question in this appeal is a narrow one. The suit was brought in the name of Cochran & Co. against the appellant, as executrix of A. H. Hager. Pending the suit, it was, by the direction of plaintiff's attorneys, entered to the use of Albert Small; and, as thus entered, judgment was taken by default for a proportion of assets. Upon this judgment a scire facias was issued, to which the defendant pleaded nul tiel record. At the trial the plaintiffs offered in evidence the original record, to the admissibility of which the defendant objected, on the ground that an attorney cannot assign a suit or judgment to a third party. Whether an attorney can enter a suit or judgment to the use of a stranger, without the authority of the plaintiff, is a question which we shall not now stop to consider. The plaintiff is not here denying the authority of his attorneys to enter the suit to the use of the appellee; the objection is one made by the defendant. This being so, we take it to be well settled that, in the absence of proof to the contrary, the law will presume the entry to have been made by the direction and authority of the plaintiff. Spiker v. Nydegger, 30 Md. 315; McAleer v. Young, 40 Md. 439. In thus disposing of this exception, we are not to be understood as deciding that the objection relied on by the appellant is one which could be made under the plea of nul tiel record. Such a plea raises but one question, and that is whether there is such a record, as that set out in the writ; and this question is one to be determined by the court, upon an inspection and examination of the record itself. Com. Dig. "Pleas," 2 W, 39; Vin. Abr. tit. "Debt," X, pl. 3; Dick v. Tolhausen, 4 Hurl. & N. 695; Steph. Pl. 130n.
Judgment affirmed.
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