Fessler v. Weiss

Decision Date09 September 1952
Docket Number45651,No. 45606,45606
Citation107 N.E.2d 795,348 Ill.App. 21
PartiesFESSLER v. WEISS (two cases).
CourtUnited States Appellate Court of Illinois

Irving M. Greenfield and Edward A. Myerson, Chicago (Irving D. Levin, Chicago, of counsel), for appellant.

Wyatt Jacobs, Chicago (Charles E. Heckler, Chicago, of counsel), for defendant respondent.

SCHWARTZ, Justice.

On June 26, 1951, the Circuit Court of Cook County entered an order in this case which (a) vacated a judgment entered June 14, 1951 upon a verdict for $10,000, (b) set aside an order denying a motion for judgment notwithstanding the verdict, (c) set aside an order denying a motion for a new trial, and (d) granted a new trial. From that portion of the order which granted a new trial, plaintiff petitions this court for leave to appeal. She also prosecutes an appeal from the balance of the order. On motion, the petition for leave to appeal was consolidated with the appeal. A motion to dismiss the appeal has been made on the ground that the order must be construed as a whole and as such is not a final order. As we have determined the matter on its merits, this motion is denied.

The suit is for personal injuries sustained by plaintiff while riding in a cab which collided with defendant Daniel E. Weiss's automobile. At the time of the accident defendant was covered by a liability insurance policy issued to him by the Preferred Accident Insurance Company of New York, under which the company agreed to defend him at its own cost against any suit brought against him to recover damages due to injuries caused by his automobile.

Wyatt Jacobs was retained by the insurance company and entered his appearance on behalf of defendant Weiss in January 1949. Over two years later, on April 19, 1951, the case reached the 'A' trial call, that is, a list of cases which must be ready when reached. Jacobs or his associate, William H. Warvel, answered the trial call daily thereafter. In early May 1951 insolvency proceedings were instituted in New York against the insurance company and it was declared insolvent. After notifying defendant Weiss, Warvel appeared before the motion judge on June 11, 1951, and asked leave to withdraw Jacobs' appearance for Weiss, as the liquidator had refused to give Jacobs further authority to represent him in any suits. Weiss was present on June 11th when Jacobs' motion was argued before the motion judge and he agreed to abide by the decision of the court on that motion. At that time the case was practically ready to be assigned for trial, and the motion judge refused to allow Jacobs to withdraw. Jacobs and Warvel answered the call on June 12th, 13th and 14th, and on the last named date, the case was assigned for trial to Judge Henry J. Ingram, sitting in Cook County on a temporary assignment.

On June 14, 1951 the case came on for trial before Judge Ingram. Weiss was not present. The jury was called and plaintiff proceeded to present her evidence. At the close of plaintiff's case a verdict was directed for certain defendants other than Weiss and one Goldman. No evidence was presented for Weiss. The jury returned a verdict of guilty as to Weiss and codefendant Goldman and assessed plaintiff's damages at $10,000. A motion for judgment notwithstanding the verdict or for a new trial was formally made and formally denied without contest by Judge Ingram and judgment on the verdict was entered against both Weiss and Goldman.

On Saturday, June 16, 1951, two days after entry of the judgment, Jacobs appeared before Judge Ingram, who was then sitting in the 'Marriage Court,' with a motion to vacate the judgment and the orders referred to. Judge Ingram refused to hear Jacobs' motion at that time. On June 19, 1951, Jacobs presented to Hon. Harry M. Fisher, Motion and Assignment Judge of the Circuit court, a motion to vacate the judgment and post trial orders. This motion was supported by the affidavit of Mr. Warvel. After some argument and the presentation of a counter-affidavit by Mr. Levin, counsel for plaintiff, the court on June 26, 1951 entered the order here in question. The court took judicial notice of the fact that Judge Ingram, the trial judge, was not within the jurisdiction and held that the matter therefore came properly before his branch of the court. He concluded from the affidavits which had been filed and from the statements of counsel which had been presented to him that the proceedings at the trial, the verdict, and the subsequent post trial motions and orders were all had pursuant to an understanding between counsel, and that Weiss had not been notified of the trial. Recalling the fact that he had ordered Mr. Jacobs to continue his representation of Weiss even though the insurance company had become insolvent and had denied Jacobs' motion for leave to withdraw, the court held that under such circumstances it could not presume that the lawyer had authority to consent tacitly or expressly to the verdict and the entry of the post trial orders; that Weiss was not notified of the time of the trial; and that under such circumstances it was unjust to permit the judgment to stand. The court entered these orders pursuant to Par. 7, Section 50 of the Practice Act, Ill.Rev.Stat.1951, C. 110, § 174(7), which is as follows:

'(7) The court may in its discretion before final judgment, set aside any default, and may within thirty days after entry thereof set aside any judgment or decree upon good cause shown by affidavit, upon such terms and conditions as shall be reasonable.'

The foregoing provision was enacted to take the place of term time, during which, it was said, all matters rested within the breast of the court and were always subject to change upon the exercise of proper discretion. The question, therefore, is whether there was such an abuse of discretion in the entry of the order of June 26, 1951, as to require reversal by this court.

It is argued that the insolvency of the insurance company and the refusal of the liquidator to continue Jacobs' employment in the case, left counsel devoid of authority to represent Weiss. Ordinarily, dissolution of a corporation or partnership terminates the relationship of attorney and client. Sinnott v. Hanan, 156 App.Div. 323, 141 N.Y.S. 505; 5 Am.Jur., Attorneys-at-law, Sec. 38. However, in this case counsel entered his appearance for Weiss, and the later liquidation of the insurance company did not affect the attorney-client relationship between him and Weiss. Jacobs' primary responsibility was to defend Weiss, and the fact that he was being paid by a third party cannot be allowed to detract from that responsibility in any respect.

An attorney who has entered an appearance of record for a client may not terminate that relationship without a formal withdrawal of record by leave of court. Jacobson v. Ashkinaze, 337 Ill. 141, 168 N.E. 647; Krieger v. Krieger, 221 Ill. 479, 77 N.E. 909. Here, the motion judge's refusal to allow Jacobs to withdraw was entirely justified. Had counsel acted earlier, his motion to withdraw might well have been allowed. However, at the time his motion was acted upon, the trial was only a few days off. He had answered ready to the trial call for approximately a month after the insolvency of the insurance company. The time between the refusal of his motion and the trial was so short that, by his own admission, he was unable to notify Weiss. After his motion for withdrawal was refused, counsel apparently recognized his duty toward Weiss by answering himself or having Warvel answer the trial call daily and by having Warvel appear for Weiss at the trial.

It does not follow, however, that counsel were authorized to give away Weiss's case. Plaintiff cites numerous cases where...

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17 cases
  • Daniel C., Matter of
    • United States
    • New York Supreme Court — Appellate Division
    • 30 Enero 1984
    ...of appellant at trial should, in and of itself and in the interest of justice, result in a new trial (see Fessler v. Weiss, 348 Ill.App. 21, 107 N.E.2d 795; Wood v. Civil Serv. Comm. of City of Los Angeles, 45 Cal.App.2d 105, 119 Cal.Rptr. 175; see, also, Department of Social Serv. v. D., A......
  • Woods v. Covington County Bank
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 11 Agosto 1976
    ...third party pays the legal fees. See, e.g., Western Auto Supply Co. v. Dillard, W.Va. 153 W.Va. 678, 172 S.E.2d 388, 393; Fessler v. Weiss, Ill.1952, 107 N.E.2d 795; A.B.A. Code of Professional Responsibility, EC 5--23 n. 27 (1970).16 The lawyer-client privilege receives specific recognitio......
  • Nolting v. Civil Service Commission of City of Chicago
    • United States
    • United States Appellate Court of Illinois
    • 20 Septiembre 1955
    ...344; Chicago & Vicinity Hungarian Benevolent Society v. Chicago & Suburb Aid Society, 283 Ill. 99, 118 N.E. 1012; Fessler v. Weiss, 348 Ill.App. 21, 107 N.E.2d 795. What the court did in the instant case was to substitute suspension for discharge in consideration of a waiver of claim for sa......
  • Fisher v. State
    • United States
    • Florida Supreme Court
    • 12 Mayo 1971
    ...reinstated Mr. Fisher and his firm as counsel of record for the Van Alsts--apparently relying on the Illinois case of Fessler v. Weiss, 348 Ill.App. 21, 107 N.E.2d 795. At this point, instead of returning to the trial judge in an effort to convince him that the order reinstating his firm wa......
  • Request a trial to view additional results

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