Hill v. Mendenhall
88 U.S. 453 (1874)

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U.S. Supreme Court

Hill v. Mendenhall, 88 U.S. 21 Wall. 453 453 (1874)

Hill v. Mendenhall

88 U.S. (21 Wall.) 453

Syllabus

1. Where suit is brought on a record which shows that service was not made on the defendant, but which shows also that an appearance was entered for him by an attorney of the court, it is not allowable, under a plea of nul tiel record only, to prove that the attorney had no authority to appear.

2. Presumptively an attorney of a court of record who appears for a party has authority to appear for him, and though the party for whom he has appeared, when sued on a record in which judgment has been entered against him on such attorney's appearance, may prove that the attorney had no authority to appear, yet he can do this only on a special plea or on such plea as, under systems which do not follow the common law system of pleading, is the equivalent of such plea.

Hill sued Mendenhall in the court below upon a judgment in one of the courts of record in the State of Minnesota. The plea was nul tiel record alone. Upon the trial of the issue made by this plea, the plaintiff introduced in evidence an exemplification of the record sued upon. This record showed upon its face that the defendant was, at the time that action was commenced, a resident of the State of North Carolina; that the summons issued had been returned not served; that thereupon, by order of the court, service was made by publication, and that after such publication the defendant appeared by attorney, filed an answer verified by an agent, and voluntarily submitted himself to the jurisdiction of the court.

The bill of exceptions showed that after introducing the

Page 88 U. S. 454

record, the plaintiff called a witness who gave evidence tending to prove that the party who verified the answer was at the time an agent of the defendant for the transaction of his business in Minnesota. The defendant then testified in his own behalf and in substance denied the agency.

The circuit court found that there was such a record as was sued upon, but because it did not appear in the exemplification or from the evidence that the summons had been served upon the defendant, gave judgment in this action in his favor. This ruling of the circuit court was now assigned for error.

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