McLyman v. Miller, 7121.
| Citation | 161 A. 111 |
| Decision Date | 21 June 1932 |
| Docket Number | No. 7121.,7121. |
| Parties | McLYMAN et al. v. MILLER. |
| Court | United States State Supreme Court of Rhode Island |
Exceptions from Superior Court, Providence and Bristol Counties; Charles A. Walsh, Judge.
Action by Benjamin M. McLyman and others against Carrie E. Miller. Defendant's motion to restore the case to the jury trial calendar was denied, and she brings exception.
Exception overruled, and case remitted.
J. Raymond Dubee and Lester S. Walling, both of Providence, for plaintiffs.
James J. McCabe, of Providence, for defendant.
This action is before the court on defendant's exception. The exception is to the decision of a justice of the superior court denying defendant's motion that the case be restored to the jury trial calendar.
The writ and declaration were filed July 10, 1931. July 15, defendant, by her attorney, filed a plea of the general issue and also filed a claim for a jury trial. October 14 defendant's attorney and the plaintiffs signed an agreement that the case be assigned to the continuous calendar of jury cases. January 15, 1932, plaintiffs' and defendant's attorney filed an agreement that the case be assigned for hearing (jury trial waived) to the miscellaneous calendar January 25. The reason for this agreement appears to have been that, when the case was reached for trial by jury January 15, it was said that defendant was unable to attend court on account of illness. The court ruled that the jury should be impaneled and the trial resumed January 18. During the noon recess defendant's attorney signed the agreement to waive jury trial and assigned the case for trial January 25. On this latter date defendant was unable to attend court, on account of illness, and the case was continued to February 1. In the meantime defendant retained another attorney, who entered his appearance January 27, and moved that the case be restored to the jury trial calendar. After hearing, the court denied the motion.
Defendant contends that her former attorney had no authority, without her consent, to waive her right of trial by jury, and also that said case, by stipulation, could not be removed from the jury trial calendar after jury trial had been claimed.
An attorney is an agent employed by a party to a case to manage the same for him. 6 C. J. 566. By his employment, the attorney is authorized to take such steps in defending the action as he may deem legal, proper, and necessary, and his acts in that respect, in the absence of fraud, must be...
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