Bacon v. Mitchell
| Decision Date | 05 January 1906 |
| Citation | 106 N.W. 129,14 N.D. 454 |
| Parties | BACON v. MITCHELL et al. |
| Court | North Dakota Supreme Court |
The legal presumption is that an attorney has authority to appear for the person for whom he assumes to act.
A suitor who does not disclaim the authority of an attorney who assumes to represent him in an action, when it is his duty to do so, may not do so afterwards. He cannot take the hazard of a trial, and, when unsuccessful, allege as ground for vacating the judgment that the attorney who conducted the trial had no authority.
Under his general authority an attorney has the exclusive control of the remedy, and he may discontinue the action by a dismissal without prejudice, and his client is bound by his act.
An attorney's mistake of judgment as to the law or his ignorance of facts which he ought to have known is not sufficient ground for vacating a judgment of dismissal entered upon his motion.
Appeal from District Court, McHenry County; L. J. Palda, Jr., Judge.
Action by J. D. Bacon against Robert Mitchell and Charles Mitchell. Judgment for defendants, and plaintiff appeals. Affirmed.
A. M. Christianson and C. J. Murphy, for appellant. W. R. Garrett and Le Sueur & Bradford, for respondents.
Action upon a promissory note. Issue was joined by service of answer November 27, 1901. In March, 1903, by leave of court, an amended answer was served. The case came on for trial regularly before a jury at Towner, McHenry county, at a regular term of the district court of that county, on June 27, 1903. At the request of C. J. Murphy, an attorney at law, residing in the city of Grand Forks, who was plaintiff's attorney of record, one A. M. Christianson, an attorney, residing in Towner, appeared and conducted the trial for plaintiff. After introducing considerable evidence, both oral and documentary, but before the case was formally submitted, Christianson moved to dismiss without prejudice, a course which was induced by the imperfect condition of certain depositions which he deemed essential to establish the plaintiff's case, and judgment of dismissal was duly entered. Thereafter an order was issued to defendants to show cause why the judgment should not be set aside and the case reinstated for trial. The grounds of the motion were set out in a number of affidavits made by Christianson, Murphy, and others, in which it was made to appear that the plaintiff did not engage Christianson to try the case; that he was merely engaged by Murphy, and had, therefore, as plaintiff's counsel contend, no legal authority to act for plaintiff or to move to dismiss; and that unless the judgment of dismissal is set aside, and the case reinstated, the statute of limitations will be a complete defense to another action on the note. The motion to vacate was denied, and plaintiff appeals from the order.
We are of opinion that the court did not err in making the order in question. In reaching this conclusion, it is unnecessary to discuss the extent of an attorney's authority to employ a substitute or subordinate. Upon the facts of this case the correctness of the order does not turn upon that question. The real question is whether the plaintiff can be heard to say that Christianson was without authority to represent him. We are agreed that he cannot. Christianson is a regularly licensed attorney. Presumptively an attorney has authority to represent the person whom he assumed to represent. Weeks on Attorneys, § 196, and cases cited. Also, 4 Cyc. 928, and cases cited. The business of the courts is transacted upon this assumption. It is not necessary, in the first instance, for the court or counsel for the adverse party to demand proof of the authority of an attorney to act. “The burden is upon the person denying the authority.” In this case it was upon the plaintiff. He did not disclaim Christianson's authority, but permitted the case to proceed to trial without objection to his appearance. The trial judge and defendant's counsel assumed that he had authority to represent the plaintiff. They had a right to rest upon the presumption of authority. The plaintiff instituted the action and invoked the jurisdiction of the court. The case was regularly reached for trial. The record does not show affirmatively that the plaintiff was present at the trial. That fact, however, is not material. It was his duty to attend the trial in person, or by an authorized representative. A failure to appear is deemed an election to become nonsuit. Thompson on Trials, § 2229; Nordmanser v. Hitchcock, 40 Mo. 179. If Christianson had, in fact, no authority to appear for him, it was his duty to disclaim his assumption of authority. He cannot be permitted to say, after taking the hazard of a successful issue of a trial, that the attorney who assumed to represent him had in fact no authority. See Bingham's Trustees v. Guthrie, 19 Pa. 418, 424;Christman v. Moran, 9 Pa. 487. He is in no worse position than he would have occupied had Christianson not assumed to represent him.
It is also urged that the general authority of an attorney does not include the power to discontinue the action, and that the judgment of dismissal without prejudice, which was entered on Christianson's motion, should therefore be set aside. This contention is based upon an erroneous view of an attorney's general authority. True the cause of action itself is under the control of the...
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Beggs v. Paine
...an error of judgment which is a common incident of all trials, and is never held to present a ground for a new trial. Bacon v. Mitchell, 14 N. D. ----, 106 N. W. 129. If the rule were otherwise, there would be no end to lawsuits. I cannot see how the court or opposing counsel were in any wa......
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Holbrook v. J. J. Quinlan & Co.
...of his client discontinue the suit. McLeran v. McNamara, 55 Cal. 508; Davis v. Hall, 90 Mo. 659, 3 S. W. 382; Bacon v. Mitchell, 14 N. D. 454, 106 N. W. 129, 4 L. R. A. (N. S.) 244, and note. And In Brown v. Mead, 68 Vt. 215, 34 Atl. 950, this court gave such a discontinuance the effect of ......
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...of law and mere ignorance of the law. See Vartanian v. Croll, 1953, 117 Cal.App.2d 639, 256 P.2d 1022; Bacon v. Mitchell, 1905, 14 N.D. 454, 106 N.W. 129, 4 L.R.A.,N.S., 244. The facts in Duenow v. Lindeman, 1947, 223 Minn. 505, 27 N.W.2d 421, would indicate that Minnesota relieves a client......
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Mongeon v. Burkebile
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