22 rhesus;. REPORTER. ,
other person ever hadany authority to appear forjhim and in his be-
half in that suit;. and that he never entered his appearance therein
in person. To this plea the plaintiff replies that the defendant had
knowledge of the commencement and pendency of the suit, and did
by his agents procure attorneys of the court there to appear for him
and in his behalf in that cause, and that he did, by those attorneys,
voluntarily appear in said cause and defend it, and after the judg-
. ment had been rendered, he paid the attorneys for their appearance
in the cause and for defending it, and ratified and confirmed their
appearance in and defense of it. The defendant traversed this repli-
cation, and issue to the country is joined upon it. The other plead-
ings are disposed of in such manner as to leave this one for trial,
and it is tried by the court upon waiver in writing of a jury. The
record shows service by attachment of property of the defendant as a
non-resident of Kansas only, and an appearance and answer for the
defendant by the attorneys named in the replication. The plaintiff
claims that the record of the appearance in the cause of attorneys of
the court for the defendant is conclusive of their right to appear for
him, and that evidence to the contrary should not be considered.
There are cases which perhaps go to this length. Mills v. Duryee,
7 Cranch, 481; Lopham v. Briggs, 27 Vt. 26. But it is now well
settled in the courts of the United States that want of jurisdiction
= to bind the person may be shown in an action upon the judgment
against the person. Thompson v. Whitman, 18 Wall. 457 ; Knowles
v. Gas-light Oo. 19 Wall. 58; Hall v. Lanntng, 91 U. S. 160; Gra-
ham v. Spencer, 14 FED. Rap. 603. The fact that the attorneys en-
tered an appearance for the defendant is, perhaps, conclusively shown
by the record, but that they had authority in fact, or any more than
that they assumed to have authority, is not shown at all by it. The
presumption that all was rightly done arising from their being ohi-
cers of the court, is admitted to, and doubtless does, cast the burden
upon the defendant of showing that the appearance was without his
authority. The defendant testihes distinctly that he never employed,
nor authorized the employment of any attorney to appear for him
in the case, and there is no proof that he ever did. Three attorneys
appeared; one at hrst, and two others afterwards. The testimony of
the last two shows that they were engaged by the first, and he is dead,
and nothing is produced to show that the defendant ever had any
communication with him. A deposition of the defendant was taken
by the plaintiff in Vermont, where the defendant resided, on notice
accepted by the attorneys in Kansas, and Bled in that cause, in which
it is stated that the deponent "is the defendant" in the cause. After —
the judgment was renderedthe attorneys telegraphed to the defen- '
dant: "Simonds writes refusing to be responsible for fees. Are we
to be paid for services, and by whom? Answer definitely, quick."
t He answered: "We expect to pay our counsel." In a few days he
sent $300 for them., `