Bingham v. Supervisors Winona County

• Citation: 6 Minn. 82
• Parties: R. H. BINGHAM v. THE BOARD OF SUPERVISORS OF WINONA COUNTY.
• Decision Date: 01 January 1861
• Court: Supreme Court of Minnesota (US)

6 Minn. 82

R. H. BINGHAM

v. THE BOARD OF SUPERVISORS OF WINONA COUNTY.

Supreme Court of Minnesota.

Appeal from order of district court, Winona County.

This was an action brought by appellant to recover fees for certain services as treasurer of Winona County. After the pleadings were made, the parties, by their respective attorneys of record, entered into a stipulation in these words: "It is hereby stipulated and agreed, by and between the parties to the above entitled action, that all the facts alleged and charged in the plaintiff's complaint herein, and such and every one of them, be, upon the trial of this cause, admitted to be true by the defendants, and that no question of law or

fact shall be submitted or urged before the court, by either party, other than that which relates to the amount of fees which the plaintiff is entitled to recover, under the statute regulating fees in like cases."

Afterward, the county attorney who succeeded the one who signed the stipulation, made a motion to set aside the stipulation and for leave to amend the answer, upon an affidavit, the contents of which are sufficiently stated in the opinion.

The motion was granted, and from the order granting it, an appeal was taken.

Points and authorities for plaintiff: —

1. The court erred in granting the motion. First, at common law, where nothing more than the ordinary relation of attorney and client exists, the latter is bound, as between him and the opposite party, by every act which the former does in the ordinary course of practice, and without fraud or collusion, however injudicious that act may be. Latuch v. Pasherante, 1 Salk., 86; Griffiths v. Williams, 1 Term R., 710; 1 Gra. Pr., (3d ed.) 236. No fraud or collusion is pretended to exist in this case. Second, if an attorney, by negligence, suffers judgment by default, submits to a non-suit, withdraws the record, or confesses the action, his client is bound. So he may discontinue the action, waive a judgment by default, refer a cause, enter a remittitur damna, give a cognovit, or the like — may stipulate, as a condition of obtaining a continuance of a cause for the term, that the action shall not abate by the death of his client before the trial — may refer a cause to arbitrators, with an agreement that the award shall be final — may waive all informalities and irregularities — may stipulate, out of court, concerning the facts in the case, and his client is bound by all such acts and stipulations. Lush Pr., 219; Anonymous, 1 Salk., 86; Gaillard v. Smart, 6 Cow., 385; Reinholdt v. Alberti, 1 Binn., 485; Filmer v. Delber, 3 Taunt., 486; Lamb v. Williams, 1 Salk 89; Clarke v. Gray, 1 How., Pr. R., 128; Ames v. Webber, 10 Wend., 571 and 624; Wilson v. Young, 9 Pa. St., 101, Hanson v. Hoitt, 14 N. H., 56; Alton v. Gilmanton, 2 N. H., 520; Part 1, Cow. & Hill Notes, (3d ed.), 366; 1 Gra. Pr., (3d ed.), 236. Third, even where an attorney appears without authority, his client is bound by his acts, and if he suffers damages in consequence thereof, he must look to the attorney. Anonymous, 1 Salk., 86 and 88; Denton v. Noyes, 6 Johns., 296. Fourth, the same is true of the authority of attorneys in courts of equity. Bethel Church v. Carmack, 2 Md., Ch. Decis., 143; Thornburg v. Macauley, 2 Md. Ch. Decis., 425; Lawson v. Bettison, 12 Ark., 401. Fifth, in this state the common law rule is declared to its fullest extent by statute. An attorney is authorized to bind his client in any of the proceedings in an action or special proceeding, by his agreement duly made in writing; and his agreement so made is as binding as if made by his client, or entered on the record of the court. Comp. Stat., 667, § 10.

2. In this case, the attorney, by virtue of his office, possessed all the power and authority in the premises of both attorney and client. First, a district attorney in the state has the sole and exclusive power and control over, in, and about, all civil suits, applications, or motions, in the district court in which his county is interested as a party. Comp. Stat., 164, § 3.

The order of the court below should be reversed.

Points and authorities for defendant.

1. The order appealed from is not an appealable order, therefore the appeal ought to be dismissed. Session Laws, 1861, p. 133; How. N. Y. Code, p. 537; 10 How. Pr. R., 90; 21 How. Pr. R., 97; 18 N. Y., 150; 11 N. Y., 276; 16 N. Y., 242; 21 N. Y., 531; 2 E. D. Smith, 223; 4 Minn., [227].

2. Setting aside the stipulation and releasing therefrom are nothing more than granting leave to amend the pleadings one is involved in the other, and the leave to amend necessarily destroys the stipulation.

3. An attorney has no right to stipulate away any valid defenses which his client may have, without express authority from that client.

4. The affidavit on which the motion was made, is not contradicted on any material point, by the counter affidavit of A. S. Seaton; it must, therefore, be taken to be true; but even if contradicted in every material part, the court, in its discretion, could believe what it chose, and act accordingly.

5. A motion to amend the pleadings at any time before trial is proper, and in accordance with our practice, and courts will not inquire into the merits of the proposed amendments, further than to see that they are not plainly frivolous. Minn. Stat., 544, § 94; 11 How. Pr. R., 170; 4 Cow., 555; 7 Wis., 540.

6. The court has an undoubted right to release parties from a stipulation on motion of either party, on the ground of fraud, mistake, surprise, negligence, ignorance, or improvident admissions. 13 How. Pr. R., 26; 19 How. Pr. R., 193; 16 How. Pr. R., 144; 1 Cow., 117; 6 Wend., 515; 9 Wend., 437; 32 Barb., 134; 1 Story Eq. Jur., 251, 134; 1 Hoff. Ch. Pr., 28, 24; 10 Barb., 547; 33 Barb., 603.

7. The court would release a county from the stipulation of a county attorney, made without express authority, for less cause than they would an individual, who could be supposed to know more of what his counsel were doing.

8. The court would permit the amendment and release from the stipulation for less cause, for the reason that no harm is done the plaintiff, nor is he in any manner prejudiced by the setting aside of the stipulation.

9. The stipulation is a fraud on the defendants, for however innocently procured on the part of the plaintiff, it takes from the defendants two separate and complete defenses in law, which, by the terms of the stipulation, they are prevented from raising.

10. The stipulation in question is a fraud on the defendants, for the further and conclusive reason that it essays to give jurisdiction to the court indirectly, by stipulating that the defendants will raise no question, either of law or fact; that it will not call in question the jurisdiction of the court, when, in fact, the court had no jurisdiction, and therefore could not gain it even by stipulation; for the only place where this matter could be settled, was with the board of supervisors of Winona County. On page 160 of the Statutes of Minnesota, the treasurer is directed to settle his account with the board of commissioners. If that law was repealed by the township act of 1858, on page 198 of the Statutes, the treasurer is ordered to "exhibit all his books and accounts, and all vouchers relating to the same, to be credited," and on page 154, power is given to the board of commissioners to examine and settle all accounts of the receipts and expenditures of the county, and on page 194, of the Statutes, power is given to the board of supervisors, to credit all accounts chargeable against their county, and to direct the raising of such sums as may be necessary to defray the same; and to audit means to examine, settle, and adjust, or, in other words, to determine how much, if any, is due from the county; and the decision of the board of supervisors was final in such matters, prior to the passage of the law of 1852, which gives the right to appeal from the decisions of the board of supervisors, unless it was a claim that you could compel the board to pay by mandamus.

In this cause the remedy of the plaintiff was to either appeal from the decision of the board of supervisors, or (the amount which the plaintiff claims, being for a statutory fee easily computable) to have compelled the board by mandamus. If the county can be sued in a matter of this kind, it opens the door for thousands of vexatious suits which the framers of our laws never intended should occur. 20 Barb., 294; 2 Sandf., 460; 10 N. Y., 260; 18 Johns., 242; 9 Wend., 508; 10 Wend., 363.

Sargeant & Franklin, for appellant.

Wm. H. Yale, for respondent.

ATWATER, J.

The authority of an attorney to bind his client, as defined by sec. 10, p. 667, Comp. Stat., extends to "any of the proceedings in an action or special proceeding duly made, or entered upon the minutes of the court." This provision is sufficiently broad to cover a stipulation of the kind here presented, and it is binding upon the client, until he is relieved therefrom, by proper order of the court, or due course of law.

The counsel for the respondent claims that the order is not appealable, on the ground that setting aside the stipulation and releasing therefrom is nothing more than granting leave to amend the pleadings; that one is involved in the other, and the leave to amend necessarily destroys the stipulation. In this position the counsel, we think, is mistaken. The stipulation is, in substance, a settlement of the issues to be tried. The parties have a perfect right to make such an agreement, and having made it, it has, by virtue of the statute, all the binding force of any other contract, and is not to be disturbed except upon such grounds as would be sufficient to set aside any other contract between the parties. At least, I think this settlement of the issues by stipulation, should have as much effect as their determination by the verdict of a jury, and that it should require the same, or as...