Vorce v. Page

• Decision Date: 31 December 1889
• Citation: 44 N.W. 452,28 Neb. 294
• Parties: VORCE v. PAGE.
• Court: Nebraska Supreme Court

28 Neb. 294

44 N.W. 452

VORCE

v.PAGE.

Supreme Court of Nebraska.

Dec. 31, 1889.

Syllabus by the Court.

1. Where an attorney appears in a cause, the presumption is that he has authority, and that presumption continues until the want of such authority be established by proof.

2. The question of the authority of such appearance was submitted to the trial jury specially, and they found that the appearance of counsel in proceedings upon which plaintiff's rights were based was without authority. Held, under the evidence, the finding of the jury was conclusive.

3. Where service of notice is made by publication, and no appearance is made by the defendant, jurisdiction will be acquired for no other purpose than granting the relief demanded in the petition, and of which notice was given.

Error to district court, Douglas county; DOANE, Judge.Kennedy & Gilbert, for plaintiff in error.

Savage & Morris, for defendant in error.

REESE, C. J.

This was an action in ejectment by which plaintiff in error sought to recover from John H. Peterson the possession of the S. E. 1/4 of section 2, in township 14 N., range 11 E., in Douglas county. Soon after the institution of the action defendant in error, Maria L. Page, appeared, and asked to be made a party defendant, when she was allowed to intervene as defendant in the action. Peterson, who had possession of the real estate as her tenant, appeared, and filed his disclaimer, when the action proceeded against defendant in error alone. The petition of plaintiff in error was in the usual form. The answer of defendant in error was a general denial of all the allegations of the petition, with the exception of the allegation that she was in the possession of the property, which was admitted. A jury trial was had, which resulted in a verdict in favor of defendant. Plaintiff brings the case to this court by proceedings in error. It appears from the evidence that the real estate in controversy was patented to defendant in error by the United States in the year 1860, and after residing in Douglas county for a time, she, with her husband and family, removed to the state of Pennsylvania. Soon after their removal, J. N. H. Patrick instituted a suit in the district court against her and her husband for the sum of about $300, which, it was alleged, Patrick had paid as rent on the property which had been occupied by the family during a portion of their residence here. The action was an attachment, and the property in dispute was levied upon, and notice was given by publication. Prior to the rendition of the judgment the law firm of Redick & Briggs appeared for defendant in error, and contested the case in her behalf. No appearance was made by her husband. A judgment was rendered in favor of Patrick and against Henry L. Page, the husband of defendant in error, for the sum of $305.50, and for the satisfaction of which an order of sale was issued and the property sold, the sale confirmed, and a deed made. Plaintiff in error is a grantee, through mesne conveyances, of the purchaser at the sale. It was contended by defendant in error upon the trial, and so testified by her, that the firm of Redick & Briggs had no authority to appear for her in the district court, and that she had no knowledge of the pendency of the proceedings to subject her land until long after the sale; that their appearance was through a mistake made by them. It was also testified by her husband, Henry L. Page, that he had corresponded with them concerning a piece of property in the city of Omaha, about which there was some question, and that he employed them to look after that property; but that he did not employ them to defend in the suit of Patrick against himself and defendant This question was submitted specially to the trial jury, and by their special verdict they found that the firm of Redick & Briggs had no authority to appear for defendant in error in that suit, and were not employed by her, nor for her. Upon the other questions presented upon the trial the court instructed the jury to return a verdict in favor of defendant in error.

The special finding of the jury must be taken as conclusive that Redick & Briggs had no authority to appear for defendant in error in the suit referred to. While that firm was composed of reputable gentlemen, who certainly would not appear in a case of that kind without believing that they were acting by authority, yet, we think, upon the evidence offered, the jury were justified in finding that their appearance was through a misapprehension, and not by employment. When an attorney appears in an action as the representative of a party to such action, the presumption of law is that he appears by the authority of the party whom he assumes to represent; but this presumption is prima facie only, and may be rebutted by proof that the appearance was without such authority. The appearance of counsel being without the procurement or...