Turner v. Caruthers

17 Cal. 431

• Court: California Supreme Court
• Decided: July 1, 1861
• Status: Published

Opinion

Baldwin, J. delivered the opinion of the Court

Field, C. J. concurring.

The suit having been instituted in the name of the plaintiffs by an attorney of the Court, it is to be presumed prima fade that they authorized the attorney to appear and prosecute. It was not matter in abatement that the plaintiffs or either one of them had not given this authority. The proper mode of procedure, if the suit were not authorized, was for the defendant to move the Court upon proper affidavits to dismiss the suit, upon the ground that it was not authorized by those in whose names it was brought. If the attorney, on such a motion and after notice of it, failed to show his authority, the Court might dismiss the case. But it would lead to great confusion to hold that the parties may be heard in the progress of a dase on trial otherwise than through the attorneys appearing for them on the record. If a release or other paper had been executed by one of the parties, this might have been pleaded and its legal effect accorded to it. But it is not admissible, upon a mere suggestion at the bar by the adverse party or his attorney, to deny the right of a party to appear by the attorney of record, or to deny that the attorney so appearing has full authority to prosecute the suit. (See McKernan v. Patrick, 4 How. Miss. 336, and the cases there cited.)

Judgment affirmed.