Leslie v. Fischer
| Decision Date | 30 September 1871 |
| Parties | JOHN R. LESLIE et al.v.GUSTAV FISCHER, for use, etc. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Cook County; the Hon. JOHN G. ROGERS, Judge, presiding.
The opinion states the case.
Messrs. HARDY & HERRICK, for the appellants.
Messrs. E. & A. VAN BUREN, for the appellee.
This was an action of debt brought by Fischer for the use of Fritz, on a bond given by Leslie and the other defendants on the appointment of Leslie as deputy sheriff of Cook County. The breach assigned was a failure to pay over moneys collected on an execution in favor of Fritz. The case was tried by the court and a jury, when a verdict was found in favor of plaintiff for debt $10,000, and damages $804, for which judgment was rendered, the debt to be satisfied by the payment of the damages. A motion was entered to set aside the judgment, and for a new trial, upon the ground, amongst others, that defendants Leslie, Dewey, and Farrier, had not been served with process, and that they had not authorized any person to enter their appearance. The motion was overruled, and the defendants bring the record to this court and ask a reversal.
When an attorney enters the appearance of a party to a suit, it will be presumed that he had authority. But the presumption is liable to be rebutted if done in apt time. It is not conclusive, but may be overcome by proper testimony. The practice does not require a written retainer, and as it would be a breach of professional duty in an attorney to enter an appearance without authority, until overcome by proof, we must presume that it was proper and authorized. But in this case there was a number of affidavits filed and witnesses examined to disprove authority given, and to prove that the attorney who filed the plea acted within the scope of his authority. Leslie swears he was never served with process, and had no knowledge that such a suit had been brought, until the cause was actually called for trial and the jury was impaneled; that he never employed Hooper, or any member of his firm; that he never authorized them to file pleas for him, and did not know such pleas had been filed, until the cause was called for trial; that he never authorized any person to employ counsel for him, and the filing of the pleas was wholly unauthorized by him. Dewey testifies to the same, and so does Farrier. They all state that they...
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