Bray v. Doheny

• Decision Date: 12 November 1888
• Citation: 40 N.W. 262,39 Minn. 355
• Parties: BRAY v DOHENY.
• Court: Minnesota Supreme Court

39 Minn. 355

40 N.W. 262

BRAYvDOHENY.

Supreme Court of Minnesota.

November 12, 1888.

(Syllabus by the Court.)

An attorney for the defendant, in an action in ejectment, has authority to bind his client by a stipulation to dismiss a demand by defendant, under the statute, for a second trial.¹

Appeal from district court, Sibley county; EDSON, Judge.

Ejectment by Dennis Bray against Dennis Doheny. Judgment for plaintiff, and defendant demanded a second trial, which demand the attorneys of both parties stipulated should be dismissed. Defendant moved to set aside the stipulation. The motion was denied, and he appeals.

J. F. Fitzpatrick, for appellant.

H. J. Peck and S. & O. Kipp, for respondent.

GILFILLAN, C. J.

In this case, which was an action in ejectment, plaintiff had a verdict, and judgment was entered upon it. The defendant, within the time prescribed by the statute, paid the costs, and demanded a second trial. About a month afterwards the attorneys for the respective parties signed a stipulation, agreeing “that the demand for a retrial of said action be, and the same is hereby, dismissed, without costs to either party.” Defendant afterwards moved to set aside this stipulation, which motion was denied, and the defendant appeals. The only ground on which it is claimed the stipulation ought to be set aside is that the defendant's attorney had no authority to make it. He had none but the general power conferred on him by his being employed to defend the action. As to the extent of the power, at the common law, of an attorney to bind his client, by his acts and agreements, during or with reference to the prosecution or defense of the action, the decisions are conflicting. Many cases, difficult to distinguish in principle from this, have been cited, in which the courts held the acts of the attorney, such as to settle, compromise, or release the cause of action, to waive a judgment, to agree not to appeal, or move for a second trial, and the like, were beyond the authority of the attorney implied from his retainer to prosecute or defend the action. On the other hand, many other cases, equally difficult to distinguish from this, have been cited, in which it was decided that such acts as to dismiss an action, or agree to a nonsuit, to restore an action after dismissal, to appeal from a judgment, to waive the right to appeal, to stipulate for judgment, to open a default, to release an attachment, are within the general authority of the attorney. Fortunately we have a statute which seems intended to define the powers of the attorney, so as to leave no uncertainty in the matter. Section 9, c. 88, Gen. St. 1878, gives the attorney authority “to bind his client in any of the proceedings, in an action or special proceeding, by his agreement, duly...