Little v. Giles

CourtSupreme Court of Nebraska
Writing for the CourtREESE
Citation42 N.W. 1044,27 Neb. 179
Decision Date11 July 1889
PartiesLITTLE ET AL. v. GILES ET AL.

27 Neb. 179
42 N.W. 1044

LITTLE ET AL.
v.
GILES ET AL.

Supreme Court of Nebraska.

July 11, 1889.



Syllabus by the Court.

[42 N.W. 1044]

1. Where an action was instituted on behalf of a large number of plaintiffs, by name, for the purpose of enjoining a common defendant from prosecuting actions involving their title to real estate, and a portion of the persons whose names were used as plaintiffs gave to the defendant an instrument in writing that the suit had been instituted without their knowledge or consent, that they repudiated the action of the attorneys who instituted it, and did not desire it further prosecuted, but upon further inquiry became satisfied with the action of the attorneys, ratified it, and employed them to proceed with the case in their names, in connection with the names of those who did not disaffirm, appeared upon the trial as plaintiffs, and participated therein as litigants and witnesses, explaining that the writing was given under a misapprehension on their part, and a decree or judgment was rendered upon the merits of the case, such judgment will not be held void nor erroneous as to those never having been dismissed nor stricken from the record as plaintiffs by the trial court.

2. But when such disclaimer is made and filed in the case, and no further action is taken by such

[42 N.W. 1045]

party as a plaintiff, such statement and disclaimer, being the last expression of the parties concerning the suit or its prosecution, will be treated as a final repudiation of the suit by such party, and a decree of the district court affecting his rights, or those of the defendant as to him, will be set aside.


Appeal from district court, Lancaster county; CHAPMAN, Judge.

Harwood, Ames & Kelley and Marquett, Deweese & Hall, for appellants.

O. P. Mason, J. M. Woolworth, and L. C. Burr, for appellees.


REESE, C. J.

This case was decided at the January, 1889, term of this court, and is reported in 41 N. W. Rep. 186. The legal questions involved were disposed of by that decision; but, it appearing from the record that a portion of the plaintiffs named in the petition had signed papers, affidavits, and statements in writing inconsistent with their position or attitude as plaintiffs in the action, “the decree of the district court as to all the plaintiffs who did not disclaim was affirmed. The question as to who had and who had not disclaimed was left open for future consideration.” In accordance with the request of the court, the parties have prepared briefs and appeared at the bar, and have presented their views upon this subject. The papers referred to were signed by the parties soon after the commencement of the action, and they will be noticed in detail hereafter.

It is contended by counsel for appellants that, as the suit was instituted without the consent or knowledge of the plaintiffs named, the whole of the proceedings during the subsequent progress of the action were void, and that therefore the decree in their favor cannot be sustained. We apprehend that no legal proposition is better settled than that an attorney cannot appear in court, representing an individual or person, without authority from such person to act in his behalf, and thus bind the party for whom he appears; that any action taken by an attorney without authority therefor is void, whether such action be questioned during the pendency of the action or after judgment. As to whether the action of an attorney in voluntarily appearing for a person without authority can be ratified after judgment as any other agency might be ratified, it is not necessary for us to discuss at this time. There is no doubt but that this action was originally instituted without the consent or knowledge of a portion of the persons named as plaintiffs; that soon thereafter they made statements in writing, either under oath or without that formality, in which this fact clearly appears. While the same rules must be applied to this as to any other case coming under the general head of principal and agent, as to the invalidity of an unauthorized act of a person improperly representing himself as the agent or representative of another, and that the unauthorized acts of a person so representing himself are void and without legal force, yet we apprehend that where an attorney appears for another person in a court of justice, without authority, and during the pendency of the action thus instituted the principal for whom the appearance was made appears and ratifies, either by word or act, the conduct of the person claiming to represent him, then the whole proceeding will be so far legalized as to make it binding both upon the person thus represented and upon those interested upon the opposite side. This must be the rule. Weeks, Attys. § 247. Any other would open a door to fraud which courts could not effectually close, however anxious they might be to do so. If, therefore, any of the plaintiffs have appeared in the district court during the course of the proceedings, prior to any action having been taken by the defendants by which the persons so appearing would be estopped, and have ratified the action of the attorneys, paid them for their services, participated in the trial, furnished evidence in their own behalf, aided in the efforts being made to defeat their adversary, and have thus placed themselves in a position by which they would be bound by any adjudication against them, they cannot be treated as having disclaimed or disaffirmed the action of the attorneys appearing for them, and would be entitled to the benefits of a decree in their favor.

Believing this to be the law of the case. we will inquire as to the attitude of the persons who it is claimed have filed disclaimers, and are not entitled to the benefits of the decree. As the suit was originally instituted, the following names appeared upon the petition as plaintiffs: S. W. Little, Samuel Arbuckle, D. B. Alexander, A. J. Sawyer, S. G. Owen, Lorenzo Assmesson, R. H. Oakley, Sarah J. Purcell, A. P. S. Stewart, Thomas R. Clark, Mary A. McElhinney, D. C. Kinsell, Hannah Selwood, Alexander C. Heustis, W. J. Van Dorn, G. W. Lashus, Charles D. C. Heustis, Allen W. Hawley. A. F. Lewis, Samuel Arthur, G. F. Thornton, Sarah Cummings, William R. Rundell, Jacob Freedman, O. P. Austin, J. A. Buckstaff, Mary T. McNair, George D. Camp, Wilber F. Kellogg, Elizabeth N. Chase, Sarah A. Gable, Samuel Aughey, Clarinda A. Bumstead, Elizabeth Paden, Martha E. Snowden, Thomas Woods, Joseph S. Hoagland, Eliza W. Pillsbury, Henry V. Hoagland, W. S. Garrison, C. L. Hooper, S. E. Story, V. E. Farmer, Josephine St. Louis, Frank J. Wassika, Ella N. Miller, John H. Schwabold, Helen Weber, Samuel Henderson, Christine Bohlman, Joseph Rochardson, Patrick Lyons, W. Sandford Gee, Allen Cogswell, M. B. Cheney, Mary E. Maloney, Emma A. Beach, Barrett F. Loath, Francis D. Howell, L. S. Howell, Samuel D. Bacon, Henry S. Gordon, executor of estate of E. H. Tuttle, deceased, Alice Clark, née Tuttle, Jacob Freedman, Samuel T. English, Guy A. Barnum, H. O. Snow, George Warder, D. D. Muir, George W. Severance, Rhody A. Prindle, Mina W. Brown, W. J. Van Dorn, and G. W. Lashus.

[42 N.W. 1046]

During the progress of the trial a portion of those named as plaintiffs were dropped out of the case. We quote the following from the record: Harwood. We will dismiss all these people who have made settlements. The Court. Parties who have no interest, you can drop them out on the trial. Marquett. If they want to take another course, let them. Burr. We want them out of the case, and judgment for costs. The Court. They cannot recover costs if you are successful. Burr. We will leave it there at present, then. Woolworth. Let us have the reporter take the names of those who are dropped out. Joseph L. Hoagland, Henry W. Hoagland, C. L. Hooper, Patrick A. Lyon, Samuel Henderson, Margaret Meyers, Guy C. Barnum, Joseph Richardson, Samuel Arbuckle, D. C. Kinsel, Sarah A. Gabriel, Eliza A. Miller, Eliza N. Pillsbury, Christine Bohlman, Allen Cogswell, Mary E. Maloney, Francis Howell, Lavender S. Howell, Samuel D. Bacon, D. D. Muir, George W. Severance, Rhoda A. Prindle, Mina W. Brown, W. J. Van Dorn, (to be dismissed according to stipulation on file, and judgment according to stipulation,) G. W. Lashus, A. F. Lewis, Sarah Cummings, Mary T. McNair, George D. Camp, Wilber F. Kellogg, Samuel Aughey, W. S. Garrison, W. Sandford Gee, Emma A. Beach, and Samuel T. English. The persons above named are now dismissed out of this action, under the prayer of the answer in this action, except as to Van Dorn, who is to be dismissed according to stipulation on file, and judgment according to stipulation.” We also make the following extract from the brief of appellee: “The parties themselves make a record, and asked to have dismissed, under the prayer of their answer, certain parties that are dismissed. Under the issue which they plead,--that there are certain other parties which were improperly made plaintiffs without their consent,--there are, as we view it, six put in the record either by mistake or--which the evidence clearly goes to show--were never parties, and never really litigated this matter with the defendants, and of course the decree ought to be modified so as to exclude them from it, to-wit, M. B. Cheney, Jesse P. Chipman, Mary A. McSweeney, Samuel Arbuckle, Francis Wassika, and Josephine St. Louis or Lancto.” This leaves the following named persons remaining upon the record as plaintiffs: S. W. Little, D. B. Alexander, A. J. Sawyer, S. G. Owen, Lorenzo Assmesson, R. H. Oakley, Sarah J. Purcell, A. P. S. Stewart, Thos. R. Clark, Mary A. McIlhenny, Hannah Selwood, Alexander C. Heustis, W. J. Van Dorn, G. W. Lashus, Chas. D. C. Heustis, A. W. Hawley, Samuel Arthur, G. F. Thornton, William H. Rundell, Jacob Freedman, O. P. Austin, J. A. Buskstaff, Elizabeth M. Chase, Clarinda A. Bumstead, Elizabeth Paden, Martha E. Snowden, Thomas Woods, S. E. Story, V. E. Farmer,...

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6 practice notes
  • Fowler v. Brown
    • United States
    • Nebraska Supreme Court
    • May 5, 1897
    ...over them, for whatever purpose acquired, by means of their appearance, continued throughout the controversy. The case of Little v. Giles, 27 Neb. 179, 42 N. W. 1044, cited by plaintiffs in error, is not in conflict with the views here expressed. The doctrine of that case is the familiar on......
  • Roberts v. Denver, L. & G.R. Co.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 9, 1896
    ...13 Colo. 469, 22 P. 806; Dillon v. Rand, 15 Colo. 372, 25 P. 185; Weeks, Attys. § 247; Mason v. Stewart, 6 La.Ann. 736; Little v. Giles, 27 Neb. 179, 42 N.W. 1044; Clark v. Fitch, 2 Wend. 461. On principle, there should be no trouble with this proposition. While it is the privilege of the d......
  • Lesiur v. Sipherd, No. 15,650.
    • United States
    • Supreme Court of Nebraska
    • April 24, 1909
    ...v. Valentine, 24 Neb. 215, 38 N. W. 854;St. James' Asylum v. Shelby, 60 Neb. 796, 84 N. W. 273, 83 Am. St. Rep. 553;Little v. Giles, 27 Neb. 179, 42 N. W. 1044. In the event of an attempt on the part of a life beneficiary to waste or squander an estate, it would doubtless be competent, upon......
  • Lincoln Rapid Transit Co. v. Rundle
    • United States
    • Supreme Court of Nebraska
    • May 18, 1892
    ...as against the plaintiff's title. 2. That in the case of Little v. Giles, 41 N. W. Rep. 186, 25 Neb. 313, and 42 N. W. Rep. 1044, 27 Neb. 179, it was decided that Miles had no interest in the property in controversy, and hence his grantees took no interest therein. Error to district court, ......
  • Request a trial to view additional results
6 cases
  • Fowler v. Brown
    • United States
    • Nebraska Supreme Court
    • May 5, 1897
    ...over them, for whatever purpose acquired, by means of their appearance, continued throughout the controversy. The case of Little v. Giles, 27 Neb. 179, 42 N. W. 1044, cited by plaintiffs in error, is not in conflict with the views here expressed. The doctrine of that case is the familiar on......
  • Roberts v. Denver, L. & G.R. Co.
    • United States
    • Colorado Court of Appeals of Colorado
    • November 9, 1896
    ...13 Colo. 469, 22 P. 806; Dillon v. Rand, 15 Colo. 372, 25 P. 185; Weeks, Attys. § 247; Mason v. Stewart, 6 La.Ann. 736; Little v. Giles, 27 Neb. 179, 42 N.W. 1044; Clark v. Fitch, 2 Wend. 461. On principle, there should be no trouble with this proposition. While it is the privilege of the d......
  • Lesiur v. Sipherd, No. 15,650.
    • United States
    • Supreme Court of Nebraska
    • April 24, 1909
    ...v. Valentine, 24 Neb. 215, 38 N. W. 854;St. James' Asylum v. Shelby, 60 Neb. 796, 84 N. W. 273, 83 Am. St. Rep. 553;Little v. Giles, 27 Neb. 179, 42 N. W. 1044. In the event of an attempt on the part of a life beneficiary to waste or squander an estate, it would doubtless be competent, upon......
  • Lincoln Rapid Transit Co. v. Rundle
    • United States
    • Supreme Court of Nebraska
    • May 18, 1892
    ...as against the plaintiff's title. 2. That in the case of Little v. Giles, 41 N. W. Rep. 186, 25 Neb. 313, and 42 N. W. Rep. 1044, 27 Neb. 179, it was decided that Miles had no interest in the property in controversy, and hence his grantees took no interest therein. Error to district court, ......
  • Request a trial to view additional results

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