Grand Court of Calanthe v. Downs

• Citation: 53 So. 417,98 Miss. 740
• Decision Date: 07 November 1910
• Docket Number: 14712
• Court: United States State Supreme Court of Mississippi
• Parties: GRAND COURT OF COLANTHE v. P. C. DOWNS

53 So. 417

98 Miss. 740

GRAND COURT OF COLANTHE v. P. C. DOWNS

No. 14712

Supreme Court of Mississippi

November 7, 1910

APPEAL from the circuit court of Warren county, HON. JOHN N. BUSH Judge.

Suit by P. C. Downs against the Grand Court of Colanthe. From a judgment for plaintiff, defendant appeals.

Motion sustained.

Catchings & Catchings and Jas. D. Thames, for motion.

E. N Scudder and Flowers, Fletcher & Whitfield, contra.

OPINION

ANDERSON, J.

Action by P. C. Downs against the Grand Court of Colanthe. From a judgment for plaintiff, defendant appealed. Plaintiff moves to strike the bill of exceptions, and for an affirmance. Motion sustained in part, and overruled in part.

This is a motion by the appellee, Downs, to strike from the record in this case the bill of exceptions and the court stenographer's transcribed notes of the testimony, on the ground that they were not properly authenticated and filed within the ninety days allowed from the adjournment of the court at which the trial was had. The facts necessary to be set out are as follows: The court adjourned on November 30 1909, which was the end of the term. On February 24, 1910, an appeal bond, with supersedeas, was executed by the appellant. On March 7, 1910, the court stenographer's notes of the testimony were filed, and on March 31, 1910, what is commonly known as a "skeleton bill of exceptions" was filed; both, therefore, being filed more than ninety days after the term of the court at which the trial was had. The stenographer's notes were neither signed by the judge nor agreed to by counsel, unless the writing attached to the skeleton bill of exceptions amounts to such an agreement, which is in the following language: "The defendant therefore presents this as its bill of exceptions, which is agreed upon by the parties to this suit and filed by agreement this the 21st day of March, 1910; the signature of the judge being hereby expressly waived. W. E. Mollison, attorney for plaintiff. E. N. Scudder, attorney for defendant." The caption to the skeleton bill is in the usual form, and following it are these recitals: "The pleadings were read. For declaration, see page --. For pleas, see page --. Whereupon the following testimony was taken. For stenographer's notes see pages . Thereupon plaintiff asked instructions 1, 2, and 3," etc. The attorneys for the appellee in the court below were J. D. Thames and W. E. Mollison. Mr. Thames and the appellee both show by their affidavits that the former was leading counsel for the appellee, and that Mollison had no authority to sign the agreement in question attached to the skeleton bill, but, on the contrary, had been instructed by them not to make any agreement whatever in reference to the case.

The skeleton bill of exceptions was properly authenticated and filed, and became part of the record, by virtue of the agreement attached to it, provided such agreement, signed by the attorney, Mollison, assuming to represent appellee, is binding on the latter; the contention of appellee being that it is not binding, because Mollison's authority to represent him terminated with the rendition of final judgment in the court below, and, even if it did not, he was without authority, because he had been instructed by his client and associate counsel to make no agreement in reference to the cause. At the time of making the agreement in question, an appeal had already been taken; for under section 47, Code 1906, the execution of the appeal bond operated as an appeal. Section 73, Code 1906, provides that summons to answer an appeal shall be served either on appellee or "his attorney in fact or of record." In the affidavits on file by appellee and his leading counsel, it is not denied that Mollison, who was one of his attorneys of record in the court below, was employed to represent him on the appeal; on the contrary, it may reasonably be inferred that he was so employed, from the facts of the instructions given him to make no agreement about the case. It is presumed that an attorney, assuming to represent a party, is authorized to do so, and to do all acts necessary to the proper conduct of the cause, and the party denying such authority has the burden of showing his want of authority. A party to a suit may appear in person or by his attorney, and if by attorney, he is bound, as to the opposite party, "by every act which the attorney does in the regular course of practice, and without fraud or collusion however injudicious the act may be." He can give no instructions to his attorney which he can take advantage of as against his adversary. Shirling v. Scites, 41 Miss. 644; Lester v. Watkins, 41 Miss. 647; Am. and Eng. Ency. of Law (2nd Ed.) 375; Weeks on Attorneys at Law, § 222. There is nothing to show collusion or...