Davis v. Hall

Decision Date14 February 1887
Citation3 S.W. 382,90 Mo. 659
PartiesDavis, Plaintiff in Error, v. Hall et al
CourtMissouri Supreme Court

Error to Barton Circuit Court. -- Hon. Chas. G. Burton, Judge.


Robinson & Harkless and William Thompson for plaintiff in error.

(1) Under our statute the power of an attorney at law is limited to authority to prosecute and defend a suit. R. S., sec 3564. And the statute limits the power of dismissal in vacation to the plaintiff only R. S., sec. 3724. The unauthorized dismissal of the attorney is void in all cases where the right and not the remedy of the plaintiff is dismissed. Quarles v. Porter, 12 Mo. 76; Barsdale v. Appleberry, 23 Mo. 389; Hoker v Parker, 7 Cran. 436; Quin's Adm'r v Lloyd, 36 Howard's Prac. 378; Semple v. Atkinson, 64 Mo. 504; An attorney has no authority, arising from his employment in that capacity, to compromise the claim of his client; such authority, whenever it exists at all, does so by reason of the client specially and expressly conferring on the attorney the power to effect the compromise in the given case. Messick v. Ledergerber, 56 Mo. 465; Smith's Heirs v. Dixon, 3 Met. [Ky.] 438; Dollar Bank v. Robt, 4 Brew. [Pa.] 106; Walden v. Bolton, 55 Mo. 405. An attorney has no power to enter a retraxit. Lambert v. Sanford, 18 Am. Dec. 149; 16 Am. Dec. 506. All persons are bound to take notice of the authority of attorneys at law. 1 Wait's Act. & Def. 231; 1 Wait's Act. & Def. p. 226, sec. 4; Wade on Notice, secs. 658-659-669. A principal is not bound when the agent exceeds his authority. Wheeler v. Givens, 65 Mo. 89. The knowledge of the attorney implicated is not to be attributed to his client. Bigelow on Fraud, 292-293. (2) In the dismissal of cases in vacation, the law requires no record thereof to be kept by the clerk. Shoutz v. Baker, 7 Mo. 350. It is the judgments, rules, orders and other proceedings of the court which he is required to keep; and hence no record of dismissal by clerk in vacation could protect purchaser, for it is no record. R. S., sec. 627. The mere statement of the clerk in vacation that the cause is dismissed is no evidence of the fact, although it may be made on some book he calls a record; he has no authority to make or keep such a record, and it is no protection for or against any party, but is a mere statement, having no other or greater force than if the clerk had made a verbal statement, or written a letter, to the effect that the case was dismissed, and persons and parties are chargeable with these facts, and if it turns out that the case was not dismissed they cannot complain. Bigelow on Fraud, 301; Wade on Notice. Who says the case was dismissed? Not plaintiff! Nor plaintiff's attorney! No stipulation for dismissal is filed by plaintiff, nor even by his attorney; simply, the clerk says in vacation that plaintiff's attorney says it is dismissed, and such a record of a clerk in vacation is merely a hearsay statement made by him, which the court found at the next term was not true. Seymour v. Haines, 104 Ill. 557.

Harding & Buller for defendants in error.

(1) An attorney at law has authority, by virtue of his employment as such, to release an attachment on real estate. Moulton v. Booker, 115 Mass. 36; Monson v. Hawley, 30 Conn. 51. The attorney of record has exclusive control over the suit and may dismiss an attachment therein, and the client cannot dismiss it. 1 Wait's Actions and Defences, p. 437, sec. 5; McConnel v. Brown, 40 Ind. 384; Mott v. Foster, 45 Cal. 72. The attorney is the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must necessarily be considered the act of his client. Gehrke v. Jod, 59 Mo. 522; Ridgeley v. Steamer Reindeer, 27 Mo. 442; Austin v. Nelson, 11 Mo. 192; Kirby v. Chadwell, 10 Mo. 392; Field v. Matson, 8 Mo. 686; Jenney v. Delesdernier, 20 Maine, 183; Linfield v. Baldwin, 12 Pick. 388; Gaillard v. Smart, 6 Conn. 385. The statute in force April 27, 1877, said: "The plaintiff in any suit in any court of record may dismiss such suit in the vacation of the court upon the payment of all the costs that may have been accrued therein." 2 W. S., p. 1061, sec. 23. The dismissal of a suit by the plaintiff before the clerk in vacation is a valid and effectual determination and disposition of the cause. Shoults v. Baker, 7 Mo. 350. The attorney of record can control the remedy but not the right. He may dismiss the suit, or enter into any stipulation as to its conduct, or as to any of its collateral incidents. He cannot bar the right of action of his client by a compromise or by a retraxit. But in case of a mere dismissal, whether predicated upon an attempted compromise, or for any other cause, the client can bring a new suit. Tippack v. Bryant, 63 Mo. 580; Grumley v. Webb, 48 Mo. 562; Railroad v. Stephens, 36 Mo. 155; Gaillard v. Smart, 6 Conn. 385; 15 Vt. 314; 2 Story, 392. Even a compromise entered into by an attorney will be upheld if it is fair. Holker v. Parker, 7 Cranch, 436. (2) The reinstating of an attachment suit does not necessarily reinstate the attachment. That is a mere incident or appendage of the suit. R. S., sec. 410; Fechheimer v. Hays, 11 Ind. 478; Furman v. Walters, 13 How. [N. Y.] 348. It is a mere lien, and a lien once lost is gone forever, and is the same as if it had never existed. 4 Wait's Prac. 328; Pharis v. Leachman, 20 Ala. 662; Branch Bank v. Lane, 13 Ala. 431. Defendants were intervening incumbrancers and were entitled to notice of the motion to reinstate, and not having been notified it is the same, as to them, as if the suit never had been reinstated. Fisher v. Lewis, 69 Mo. 629; George v. Middaugh, 62 Mo. 549. A motion filed with the clerk in vacation does not constitute a lis pendens. Underwood v. Dollins, 47 Mo. 259. If the plaintiff wanted to bind intervening incumbrancers on the ground of fraud, he should have filed a bill in equity, or a motion in the nature of such bill, and served due notice on them. Tippack v. Bryant, 63 Mo. 583. The case stands, as to these defendants, just as if it had been dismissed at one term of the court and been reinstated at the next upon mere motion without notice. The reinstating proceedings were nullities, as to them. Danforth v. Lane, 53 Mo. 217. And the court found that defendants' grantors had no actual notice.

Black, J. Brace J., absent.


Black, J.

This is an action of ejectment for one hundred and sixty acres of land in Jasper county. Both parties claim title from Thomas F. Phillips, the plaintiff by a sheriff's deed and the defendants under a deed of trust and trustee's deed. The plaintiff in this case commenced a suit in the common pleas court of Jasper county, in 1876, against Phillips and others, and attached the land in question. The venue of the cause was changed to the Newton county circuit court. After the cause had reached that court, and in the vacation thereof, the plaintiff's attorney paid the costs and caused the clerk to make an entry dismissing the suit; this was done on the twenty-seventh of April, 1877. On the twenty-second of May, and in the vacation of the court, the plaintiff filed a motion to reinstate the cause, but gave the defendants in that suit no notice of the filing of the same. The court at the following term sustained the motion, and the plaintiff finally recovered judgment against the defendants, under which he sold and purchased the land and received the sheriff's deed before mentioned.

After the attachment suit had been dismissed, and before the motion to reinstate had been filed, Phillips applied for and received of Mrs. Clark a loan of eight hundred dollars on the land. Abstracts showing a dismissal of the attachment suit were furnished her, but the deed of trust securing the loan bears date the first of June, 1877, some ten days after the filing of the motion. There is evidence that the attorney's authority was only that which he had by virtue of his engagement to commence and prosecute the suit. On the other hand there is evidence that several suits were pending between the parties to the attachment suit, and that plaintiff instructed the attorney to settle them, which he did on fair terms to plaintiff, and in compliance with that settlement dismissed the attachment suit.

1. For the appellant it is insisted that the...

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