
    Lamb, appellant, v. Gaston and Simpson Gold and Silver Mining Company, respondent.
    Attorney in eact — authority for appeairanae. The attorney in fact of a corporation, wiio is not its general managing agent, cannot appear in an action against it without special authority.
    
      Practice — default—how set aside. A default should not be set aside, if the service has been regular, without affidavits of excusable neglect or inadvertence, and also of merits.
    Case aeeirmed. The case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57, affirmed.
    
      Appeal from the Third District, Lewis and Clarice County.
    
    The facts in this case are substantially the same as those in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, ante, p. 57. The pleadings, motions and orders of the court, Munson, J., are the same.
    This case was argued at the same time with that of Brown against same defendant, and the arguments are given in the report of that case.
    Shober & Lowry and H. N. Blake, for appellant.
    Williams & Burdick filed a written argument.
    Chumasero & Chadwick, for respondent.
   Knowles, J.

The facts presented in this case are in the main the same as those of Brown v. Gaston and Simpson Gold and Silver Mining Company. The only difference is the manner in which the respondent was brought into court. In this case R. Carter, who, it is claimed, was the managing agent of the respondent, a mining corporation, made a memorandum on the complaint, which it is claimed was a waiver of service of summons, in the following words:

“ I hereby waive service of summons in this action, and hereby appear as attorney in fact of said company.

“Helena, Nov. 25, 1867.

“R. Carter.”

The affidavits and brief filed in this case, and the proceedings subsequent to the signing of this memoranda, are the same as in the aforesaid case of Brown against this respondent. The court below, it would appear, held that this appearance was insufficient, unless it appeared that Carter had authority to appear in this cause for respondent. To establish this fact the appellants filed affidavits to show that he was a general managing agent of the respondent.

The affidavit of Burdick establishes the fact of the genuineness of Carter’s signature to the memoranda. But as far as the authority of Carter to appear in the cause is concerned, he only recites what Carter told him. While the evidence of Carter would be sufficient to establish his agency, what he said is incompetent. It is hearsay testimony. The affidavit of Cowan is mostly hearsay testimony. So for as it is not, it shows only that Carter acted for the company in settling his account. This would not be sufficient to warrant him in appearing in an action.

The affidavit of King recites that he had seen a power of attorney to Carter from- respondent, which had been sent him by telegraph. Waiving all objections to the proving of a power of attorney sent by telegraph, he does not state that there was in this any express power to appear in an action against the respondent or any one else. Nor does it show that he was a general managing agent. Carter himself does not, in the memoranda he signed, describe himself as a managing agent, but only as an attorney in fact. An attorney in fact, unless he has express authority to appear in an action, cannot do so. The authority for an attorney in fact to appear in a suit must appear within the term of the grant of power to him, unless he is a general managing agent of a corporation, and then perhaps it would be presumed. The managing agent of a corporation, however, to have this authority, must be one whose powers extend to the whole business of the company, and upon whom service of summons could be made in accordance with the provisions of the* statute. Believing that there is not sufficient evidence to establish the fact that Carter was a general managing agent of the Gaston and Simpson Gold and Silver Mining Company ; and waiving all objections to the power of attorney which he received by telegraph, it not appearing that he had express authority to appear in suits against the respondent, we find no error in the ruling of the court below. However, if we believe that the affidavits filed did establish these facts, as the court below seems to, we would hold it improper practice to allow the respondent to have the default set aside, and be permitted to come in and answer without an affidavit of excusable neglect or inadvertence and merits.

We hold, as in the case of Brown v. Gaston and Simpson Gold and Silver Mining Company, that in a cause where the manner in which a defendant is brought into court is defective, it is not error to allow him to come in and answer without any affidavit of excusable neglect or inadvertence and merits.

In accordance with these views the order of the court below is affirmed, and the cause remanded for further proceedings.

Affirmed.

Warren, C. J., concurred.  