Standefer v. Dowlin, 22 F. Cas. 1042 (1833)

Superior Court, Territory of Arkansas.

STANDEFER v. DOWLIN.

Jan., 1833.

Before JOHNSON, CROSS, and CLAYTON, JJ.

[Hempst. 209.] 1

OPINION OF

THE COURT.

During the process of the cause, and previous to the rendi­tion of judgment, the defendant filed his affida­vit and moved the court to rule McPhail, or the counsel for the plaintiff to file a warrant of at­torney to authorize them or some of them to collect the debt. In his affidavit, the defend^ ant states, “that he is Informed arid believes! that the above suit has been instituted against him by John McPhail, and the counsel of said plaintiff, without any lawful authority from said aintiff, and that he has good reason to apprehend that if the debt in this declaration should be paid to the said Me-­Phail or to said attorney or counsel, that the said McPhail or said attorneys could not execute any legal acquittance for the same.” The motion of defendant for the rule to file the warrant of attorney, or to show the au­thority for commencing the action was over­ruled, to which the defendant excepted, and after judgment was rendered against him, he appealed to this court The correctness of the decision of the court below, overruling the defendant’s motion, is the only point to which our attention has been drawn.

The uniform and settled practice here, in accordance with the practice in most if not all of the states of the Union, is to proceed in the cause, upon the appearance of an at­torney of the court for either of the parties, Without requiring, him to file his warrant or to show the authority for prosecuting or de? fending the suit. Chief Justice Kent ob­serves, in the case of Denton v. Noyes, 6 Johns. 308, that “by licensing attorneys the court recommended them to the public con­fidence, and if the opposite party, who.has concerns with an attorney in the business of a suit, roust always, at his peril, look be­yond the attorney to his authority, it would be productive of great public inconvenience. It is not usual for an attorney to require a written warrant from his client. He is generally employed by means of some secret confidential communication. The mere fact of his appearance is always deemed enough for the opposite party and for the court.” But it cannot be doubted that a defendant may, by a sufficient affidavit, or the produc­tion of sufficient proof, question the authority for bringing and prosecuting the action. This is expressly asserted-by the same eminent judge, in the case to which reference- has just been made. Did the affidavit of the defendant, in the present case, lay. a suffi­cient foundation to call upon the court to grant the rule? We think not. . It is true he stated he was informed, and believed, and had good .reason, to apprehend, that the suit had been instituted without any authority from the plaintiff in the action. But this, in our judgment, was not sufficient. He should have stated .to the court the ground upon which his belief was founded, and the rea­sons which induced him to apprehend that no authority existed for prosecuting the suit. He would then have ennbléd the. court to form a correct judgment whether the rule ought or not to be granted. To permit the defendant to question the authority-to bring the. suit on affidavit, merely stating his belief that the authority did .not exist, without showing the ground and reason of that belief, would be productive of great public incon­venience, and hold out strong temptations to perjnry for .the sake of d'.-i ry. We think' the court correctly overrule ''- the motion of the defendant, on the ground of the insuffi­ciency of the affidavit upon which the mo­tion was based. Judgment affirmed.