Same v. Same

"When a responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not. To warrant such an inquiry circumstances must be shown calculated to raise a suspicion of fraud, or of an attempt to impose upon the adverse party, or to abuse or pervert the process of the court. The mere fact that another action for the same cause has been brought in another state or country, furnishes no reason for the discontinuance of that previously commenced in this court. When the accredited minister of a foreign state declares that he is acting under the authority of his government, no court of justice, nor even the government to which he is accredited, can rightfully demand a copy of his instructions.

Appeal by the defendant from an order made by Bosworth, J., discharging an order on the plaintiff} to show cause why the authority for commencing this action should not be produced, and filed with the clerk of this court, under the oath of the party, who may claim to be so authorized; and also why all instructions to continue or discontinue the same, should not in like manner, be produced and filed; and why, upon default in the premises, or the absence of authority to commence or continue the prosecution of this suit, the same should not be dismissed, or the defendant have such other relief as may be just. The order to show cause was founded upon an affidavit of the defendant, stating, in substance, that since this suit was commenced the republic of Mexico had caused another action for the same subjéct matter, to be commenced against him in the said republic, and that the same was then depending; and that he had reason to believe, and did believe, that this suit was prosecuted against him without authority from the republic. The affidavit also stated that the defendant was informed and believed that the suit was brought and prosecuted against him by the direction of the minister-plenipotentiary of the republic. The Judge below, when he discharged the order, delivered the following opinion:— Bosworth, J. When a respectable and responsible attorney appears for a party, the court will not ordinarily inquire into the fact whether he was actually authorized to appear or not. (Denton v. Noyes, 6 J. R. 296.) When no circumstances are shown calculated to raise a suspicion of fraud, or of an attempt to impose upon a party, or to abuse or pervert the process of the court, even the mere fact of authority will not be investigated. In this case the fact of actual authority having been given is sworn to. The position of the party to the plaintiffs and to the defendant, in this transaction, to whom the authority was given, and by whose orders the action was brought, is such as to repel all suspicion or presumption that no such authority has been given, as he swears he has received. There is nothing opposed to the positive affidavit of the minister-plenipotentiary of the republic of Mexico, but the affidavit of the defendant, that he has reason to believe and does believe, that this suit is prosecuted against him without authority from the said republic. Ho fact is stated on the part of the defendant as the basis of his belief, nor are any of the reasons of the belief mentioned. Whether the court would require evidence of the authority to be filed before entry of the judgment, or at the time of entering it, as a greater protection to the defendant, it is unnecessary to decide now. ISTo facts are stated to render it the duty of the court to require it to be filed, in the present state of the action. Flo satisfactory reason is assigned for requiring any instructions that may have been given, as to .continuing or discontinuing the action to be filed. To make such an order would be equivalent to requiring an attorney to disclose the orders given him, as to the conduct of the suit, and the contingencies on which he should abandon it. ISTo authority is cited in support of such a practice, and an attempt of the court to interfere in that manner, with the ordinary course of litigation would-naturally be viewed with some suspicion. The mere fact of the commencement of an action in another state, after this was brought, and its pendency, is no reason for ordering it to be discontinued. It is not averred that the defendant has been personally served with process in that action, or that he has ever appeared in it. It is not averred that he has. been arrested in it, or that any of his property has been attached by any proceedings taken in it, or that he has any that can be reached, by any proceedings that can be taken in it. If a judgment should be rendered in that action by which the rights of the parties would be concluded before the one pending here is tried, this court would permit the judgment there to be pleaded puis darrein continuance, or by supplemental answer. If the two suits should proceed pari passu, to judgment and execution, it would order the one recovered.here satisfied, on payment of the one recovered in Mexico. So it would make any order proper, and adequate to protect the defendant, on a state of facts being presented that called for its interference. Mothing is shown on this motion rendering it necessary or expedient for the court to make any order interfering with the ordinary modes of procedure in such an action. The motion must therefore be denied, with seven dollars costs.