Lewis v. Sumner

54 Mass. 269

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1847
• Status: Published

Opinion

Shaw, C. J.

The main question in this case arises upon the objection taken by the defendant, to a paper, purporting to be signed by his attorney in court. In the course of the trial, it became necessary for the plaintiff to prove that she gave notice in writing to the defendant, the attaching officer, of her mortgage on the property, in due season, and made demand of payment thereof. To prove this, she produced the admission, in writing, of C. G. Thomas, attorney of the defendant, purporting to be made in the cause in court. It is conceded that Mr. Thomas is a sworn attorney, admitted to practise in the courts of the Commonwealth; that his appearance had been entered, as attorney for the defendant, some term previous, and had not been withdrawn.

The defendant objected to the admission of said paper as evidence, and offered to show that Mr. Thomas had not in fact been counsel for the defendant, in this action, for a year before the trial. The court refused to admit the evidence thus offered by the defendant, overruled the objection, and admitted the said paper.

The court are of opinion that the paper was very properly admitted. Nothing is more important, in a litigation in court, than for a party to know who is his adversary’s accredited agent, and with whom he may safely deal in that capacity. Hence the great need, in all courts, of setting apart officers, recognized as attorneys, and determining their qualifications, rights and powers. When, therefore, an appearance is entered for a party, by a regular attorney, all parties have a right, o rima facie, to regard him as the accredited representative of such party. It would he a great misdemeanor in an attorney, rendering him liable to censure and punishment, as well as to an action for damages, in a proper case, if he were to enter an appearance without an authority. Smith v. Bowditch, 7 Pick. 137. Field v. Gibbs, Peters C. C. 158. It follows from this, that when once an attorney has been recognized as the representative of a party on the record, he shall be presumed so to continue, until his authority is revoked, and his appearance withdrawn, and due notice thereof given; and the court of common pleas and this court have rules, prohibiting the change of attorneys, without notice. 24 Pick. 384.

The importance of upholding agreements and concessions like the present, between attorneys and counsel of litigating parties, is greater than it might seem at first blush, and is enhanced by our present practice. In most cases of controverted facts, many facts are embraced in the issue, which are not really in dispute between the parties; but each must be prepared to prove all the facts necessary to his own case, unless he can previously obtain a concession from the adverse party, in a form which he can rely upon, at the trial. It is, therefore, a wise, useful and beneficial practice, resorted to by those who are most careful in preparing causes for trial, and a practice well deserving to be encouraged by the courts, for the parties, by their attorneys, to obtain and give mutual concessions, in writing, of all the material facts, not intended to be controverted, and so narrow the litigation to the precise matters in controversy. It saves expense, avoids surprise and delay, and- often prevents the loss of a good cause, by an unexpected call for proof, which could easily have been obtained, if it had been anticipated that such fact would be called in question. This practice of admitting facts is the more necessary, since the disuse of special pleading, which was designed, and to some extent had the effect, to narrow the issue on record to some one or a few questions of fact. This consideration renders it important to hold, that a litigant party shall not be permitted to deny the authority of his attorney of record, whilst he stands as such on the docket. He may revoke his attorney’s authority, and give notice of it to the court and to the adverse party; but whilst he so stands, the party must be bound by the acts of the attorney.

It was stated in the argument for the defendant, that though an attorney may bind his client, it is only by acts done in court. We cannot admit the correctness of this view. Many things may and ought to be done out of court, and in vacation, with a view to the proper conduct of the cause. All acts to be done by an attorney, without special directions, must be acts within the scope of his official authority and duty, in the proper conduct and management of the cause in which he is engaged; and this is the proper limit of his authority.

Exceptions overruled.