Hendrix v. Fuller

1. Attorney — Service—Authority presumed. An attorney making am acknowledgment of service, on the back of the summons, will, in the-absence of proof to the contrary, be presumed to have had authority for so doing. 2. Summons — -When it may issue to another county. Where one of two-defendants in the county in which suit is brought acknowledges service-on the back of the summons, a summons for the other defendant may rightfully issue to another county. 3. Parties — Maher and Guarantor may he joined. A plaintiff may join; as defendants in one action, the maker and guarantor of a note.

Error from Douglas District Court. Hendrix, McKnabb & Co., as plaintiffs, brought suit in the district court of Douglas county against Fuller and Thompson upon a note, and indorsement thereon,, stated in the petition as follows : “ $2,150. “ New Orleans, 10th January, 1869. “ Thirty days after date I promise to pay to the order of Waddy Thompson, twenty-one hundred and fifty dollars, value received. Edward E. Fuller.” “ Said Thompson, by his indorsement on the back of said note, for value received, * * * became and is liable to said plaintiffs on said note as guarantor thereof.” Neither of the defendants resided in Douglas county; but a summons was issued to the sheriff of said county against both defendants, and while it was in his hands acceptance of service was indorsed thereon for defendant Thompson, “per N. T. Stephens, att’y.” Also, and at the same time, a summons was issued to the sheriff’ of Franklin county, who made personal service thereof on Fuller in his county. Thompson, by his said attorney, filed an answer to plaintiff’s petition. Defendant Fuller entered a special appearance and filed a motion to set aside the service of summons as to said Fuller, and also to dismiss the action for want of jurisdiction of the parties — both of which motions are set out in the opinion. These motions were heard upon the record, and without any testimony. The first motion was sustained. Service was set aside, and on application leave given plaintiffs to issue an alias summons to Franklin county. Plaintiffs excepted to the order of the court setting aside the service, and now bring that order here for review. 1. The court below dismissed the action and set aside the service on defendant Fuller improvidently and erroneously. The service on Thompson was good, and if good on him then it was also on Fuller: Civil Code, §§55, 60. Sec. 57- of the code provides how service may be made of summons, and what is equivalent to service, to-wit, appearance. At the time of the filing of the motions by defendant Fuller there was both service and appearance of his co-defendant Thompson. It is claimed that an indorsement on the back of a summons of acceptance of service could not be done by the authority of the party to be served, yet it is obvious and unquestioned that an attorney can file an answer, or by any other means enter the appearance of the defendant. Moreover, the presumption is, that the defendant Thompson authorized his attorney Stephens to sign his-name to the acknowledgment. Sleeper v. Sleeper, et al., 1 Handy, 580, expressly recognizes this as correct practice. In that case the attorney for plaintiff acknowledged service of summons for the defendant, and this latter the court was disposed to hold as irregular since the attorney was appearing for both sides; yet afterwards on the attorney’s producing a power of attorney so to do, the-court held this also allowable. But surely, the general authority of an attorney to practice his profession for a. particular person who so directs him need not be evidenced by a power of attorney. However this may be in the case at bar, the co-defendant could not take advantage of the authority, or want of it, on the part of the attorney who acted for Thompson ; the law presumed his retainer, and his lawful right to appear for his client. 9 Paige, 496; 1 How. Pr., 171; 7 Iowa, 320. Puller’s motions do not question the authority of the attorney, but deny his power to make the “ acknowledgment.” On what principle he can raise this point, we are not informed. The cases above cited certainly sustain the theory that his authority is deemed good until repudiated by the party himself. 2. But even if the acknowledgment was irregular, yet before Puller’s motion in the case is filed, the defendant Thompson was actually in court by an answer. It is not pretended but what Puller was in court provided Thompson was. Thompson was properly sued in Douglas county, and was regularly before the court. . His appearance is a matter of record. Could Thompson set aside ■the service as to himself? If not, how can Fuller do so for him ? 1. The court had no jurisdiction over Fuller. Juris■diction is obtained only by following the strict letter of the statute. 2 Waifs Pr., 16; 1 Hill, 130: 2 Kern., 575. Jurisdictional facts must exist: 4 Kas., 182; 4 Ohio St., 435. In this case the jurisdictional facts are that one of the defendants must “reside or be summoned” in .Douglas county. Civil code, § 55. The record shows that neither of the defendants resides or was summoned there. To “ be summoned,” requires a positive “ service ” of •notice upon the defendant, in the manner pointed out by law. Code, § 64; 2 Bouv. L. Die., p. 558, and 517, “ Service.” A defendant may waive service, or acknowledge service, and it will be equivalent to a summons as to him. He must do this himself. His waiver of summons, or acknowledgment, will-not confer jurisdiction upon a co-•defendant. The jurisdictional fact of a positive summoning must exist; not a toaiver of that feet. 'The statute must be strictly followed. In this case the defendant Thompson does not acknowledge service, nor does it appear that any does so for him. Counsel for plaintiffs say that “the law presumes the authority of the attorney who appears.” So it does ordinarily ; but the only question involved is jurisdiction, and for the purposes of ascertaining that, nothing is to be presumed. 2. As Thompson was not “ summoned ” in Douglas •county, and as neither party resided there, it was error to serve Fuller in Franklin county; and such service 'Conferred no jurisdiction as to him. 8. Thompson is not a defendant, in the sense contemplated by § 55 of the code, to-wit, a necessary defendant ; not a nominal defendant. He is the assignor of the note. Allen v. Miller, 11 Ohio St., 374. In that case all of the provisions of the code bearing upon the case at bar are reviewed. ' . 4. Thompson is sued “ as guarantor.” As such he cannot be joined as defendant in an action against the maker of a note. It is claimed that § 39 of our code permits this. Said section relates to “ persons severally liable upon the same obligation or instrument.” A note, and a guaranty written upon it, are not the “ same obligation.” “ They are different instruments, and impose distinct and different obligations.” 11 How. Pr., 218; 10 Barb,, 638; 8 N. Y., 214; 5 Denio, 584; 2 Comst., 553; IN. Y. Prac., 177; Swan’s PL & Pr., 108, 109. Unlike the Ohio and N. Y. codes, our § 39 says that “indorsers and guarantors,” “may be included in the same action.” But to give the effect to this that is claimed for it, the court must “advance backwards,” and contrary to the settled definitions pf notes, and guaranties, say that they are one and the same obligation or instrument, for only “ persons severally liable upon the same obligation or instrument ” are authorized to be included in the same action, under this section.