5 Div. 355.
January 15, 1942.
Appeal from the Fifth Judicial Circuit, County of Tallapoosa, Albert Hooton, J.
J. Broughton Lamberth and Richard H. Cocke, both of Alexander City, for petitioner.
A corporation can appear in an action or judicial proceeding in a court of record only by an attorney at law. It cannot appear in person or by an officer, agent or employe who is not an attorney. 19 C.J.S. p. 1005, § 1323; Brandstein v. White Lamps, D.C., 20 F. Supp. 369; Mullin-Johnson Co. v. Penn Mutual Life Ins. Co., D.C., 9 F. Supp. 175; Bennie v. Triangle Ranch Co., 73 Col. 586, 216 P. 718; Commercial Railroad Bank v. Slocomb, 39 U.S. 60, 14 Pet. 60, 10 L.Ed. 354; Osborn v. United States Bank, 22 U.S. 738, 9 Wheat. 738, 6 L.Ed. 204.
J. Sanford Mullins, of Alexander City, for respondent.
No person may be barred from prosecuting or defending before any tribunal in this State, by himself or counsel, any civil cause to which he is a party. Alabama Constitution 1901, § 10. All corporations have the right to sue and are subject to be sued in all courts in like cases as natural persons. Alabama Constitution, § 240. The word "person" as used in the Code, includes a corporation as well as a natural person. Code 1940, Tit. 1, § 2; May v. Williams, 17 Ala. 23.
Henry C. Meader, of Montgomery, amicus curiae for Alabama State Bar Association.
An appearance such as that filed by defendant Bank in this cause, by a corporation acting through its lay officers or agents, and not through a duly licensed attorney, constitutes the unauthorized practice of law. The intent of the Alabama statutes is to limit the right to practice law to those persons who are qualified and licensed as attorneys. Kanape v. Reeves, 127 Ala. 216, 28 So. 666. Section 10 of the Alabama Constitution, construed in connection with Section 240, does not apply to corporations but to natural persons only. Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423. A corporation cannot practice law, and an appearance for a corporation by one not an attorney is not permissible. Bennie v. Triangle Ranch Co., 73 Col. 586, 216 P. 718; New Jersey Photo-Engraving Co. v. Carl Schonert Sons, 95 N.J. Eq. 12, 122 A. 307; Cary Co. v. F. E. Satterlee Co., 166 Minn. 507, 208 N.W. 408. At common law a corporation was incapable of appearing in person in an action. 1 Coke Litt., 1 Am.Ed., § 90, 66B; Comyn's Dig.Pl. 2, B 2; 1 Chitty, 16 Am.Ed., p. 551. A corporation cannot act except through its agents, and the officers are but agents of the corporation. The president being but the agent of the corporation cannot perform for it services he would be incapable of performing, though qualified, for any other principal. 14A C.J. pp. 303, 354, 81, 93; 7 R.C.L. p. 620; Clark v. Minge, 187 Ala. 97, 65 So. 832; Sampson v. Fox, 109 Ala. 662, 19 So. 896, 55 Am.St.Rep. 950.
The president of a bank "is but the executive agent of the board of directors to perform such duties as may be devolved upon him; he is not the corporation and can not take the place of the governing board and make contracts or incur liabilities outside of the ordinary business of the bank without special authority." 3 R.C.L. 440, § 66; 7 Am.Juris. 178, 179, § 239.
"The authority of a president of a bank is also limited to those transactions in connection with its affairs which are usual to such officer." 7 Am.Juris., supra; Annotations, 1 A.L.R. 695; 67 A.L.R. 971.
Article 1, § 10 of the Constitution, which provides "That no person shall be barred from prosecuting or defending before any tribunal in this state, by himself or counsel, any civil cause to which he is a party," does not authorize a lay agent to appear and plead for such party. "Counsel" as here used has a well-understood meaning, that is, an attorney at law duly licensed to practice in the courts of this state. Kanape v. Reeves, 127 Ala. 216, 28 So. 666; Nispel v. W. U. R. R. Co. 64 Ill. 311; Union Pacific Railway Company, E. D., et al. v. Daniel Horney, 5 Kan. 340; State Bank of Indiana v. Bell, 5 Blackf., Ind., 127.
Unless the circuit court of Tallapoosa County, sitting at Alexander City, upon being advised of this opinion, is content to vacate its order overruling the plaintiff's motion to strike, and grant said motion, the clerk will issue the peremptory writ of mandamus as prayed.
Mandamus granted conditionally.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.