Coit v. Sheldon

1 Tyl. 300

• Court: Supreme Court of Vermont
• Decided: January 15, 1802
• Status: Published

Opinion

Sed per Curiam.

The Court have inspected the record. We find that the suit on the bail-bond brought by Samuel B. Sheldon as assignee of the sheriff against the present plaintiffs in error, was entered at the September term of Chittenden County Court, 1800, when all the defendants, now plaintiffs in error, appeared by their attorney Elnathan Keyes, an enrolled attorney of the Court. The cause was continued under a rule entered by agreement of parties, that judgment should be entered by default at the February term, 1801.

After an appearance and imparlance, all defects in personal service are waived.

Plaintiff’s counsel. With submission, we conceive, that the appearance of Mr. Keyes, who was merely the attorney of Chamberlain, ought not to operate against the other defendants, who had no notice of the suit.

Whenthename of an attorney appears on the record, the Court will not suffer the record to be controvei-ted.' If a party has been injured by the appearance of counsel not retained, he may¡ have his remedy. IF. C. Harrington and John Fay, for plaintiffs. ---5 for defendant.

Per Curiam.

The record is express. Mr. Keyes appeared as the attorney of all the then defendants, and entered into a rule for an imparlance; and it is probable that the defendants’ waiver of their plea in abatement for want of sufficient service, was the quid pro quo for the consent of Sheldon to the continuance.

But be this as it may, the record must not be controverted. The plaintiffs in error, it appears by it, have had their day in Court in the original suit.

If the fact be, that Mr. Keyes appeared for them without being engaged, which is not readily presumable in an officer of this Court, especially a gentleman of Mr. Keyes’ character, Pomroy and Coit have their action for the injury, and they must resort to it. They cannot have relief in the present suit. The defendant in error must not suffer by their laches, or the misconduct of their attorney of record.

Let judgment be entered, that the Court have inspected the record, and find that there is no error therein; that the judgment of the County Court is affirmed, and that the defendant in error have his costs.