Suydam v. Pitcher

Appeal from the Sixth Judicial District.

This cause was first decided in October Term, 1853, when Mr. Ch. J. Murray delivered the • opinion of the Court, and Judges Heydeneeldt and Wells concurred.

Pitcher, one of the defendants in the Court below, was not served with process; but it appears that the attorney of his co-defendant, who was served, filed an answer for him also, and that the canse proceeded regularly to trial and judgment.

The Court below, upon motion and affidavits, vacated the judgment as to Pitcher, from which order the plaintiff appealed.

It is contended on the part of the respondents, that the District Court has power to correct and amend its own judgments, and that the Practice Act gives the additional power of relieving a party on application within six months, from the operation of a judgment or proceeding improperly taken against him.

We have already decided that the Court below loses all power over a cause upon the adjournment of term, and cannot disturb its judgments, except in cases provided by the statute.

This case forms no exception to the general rule.

An appearance entered by attorney, whether authorized or not, is a good and sufficient appearance to bind the party, except in those cases where fraud has been used, or it is shown that the attorney is unable to respond in damages.

[281] *Mistake of counsel is never ground of error. The appearance of a licensed attorney and counsellor is prima facie eviden ce that he has been retained in the cause; and it would be a dangerous practice to afford litigants an ojiportiinity of availing themselves of, or escaping from the judgments of Courts upon such a plea.