Shores Co. v. Iowa Chemical Co.

• Decision Date: 31 July 1936
• Docket Number: 43472.
• Citation: 268 N.W. 581,222 Iowa 347
• Parties: SHORES CO. v. IOWA CHEMICAL CO. et al.
• Court: Iowa Supreme Court

268 N.W. 581

222 Iowa 347

SHORES CO. v. IOWA CHEMICAL CO. et al.

No. 43472.

Supreme Court of Iowa.

July 31, 1936

Appeal from District Court, Linn County; Herbert C. Ring, Judge.

Plaintiff commenced an action at law on an account, against defendants.Defendants filed a general denial.Stipulation was entered into between attorneys representing plaintiff and attorney then representing defendants, waiving a trial by jury agreeing to submit the case to the court.Later, defendantIowa Chemical Company filed amended answer and counterclaim also motion and demand for jury trial.Resistance was filed by plaintiff.Upon hearing the court overruled motion of defendant and held that defendant company was bound by stipulation entered into, waiving a jury.Iowa Chemical Company has appealed.Opinion states the facts.

Affirmed.

E. E Collins, of Cedar Rapids, for appellantIowa Chemical Co.

Trewin, Simmons & Trewin, of Cedar Rapids, for appelleeShores Co.

G. P. Linville, of Cedar Rapids, for appelleeC. E. Mueller.

MITCHELL, Justice.

On the 13th day of October, 1934, the Shores Company, a corporation, commenced this action at law on an account, with a prayer for the appointment of a receiver, against the Iowa Chemical Company, an Iowa corporation, C. H. Otto and C. E. Mueller, a copartnership, and C. E. Mueller and C. H. Otto as individuals.A general denial was filed on November 13, 1934, by all the defendants except C. H. Otto, and default judgment was entered against him.The defendants were represented by G. P. Linville, an attorney in the practice of law at Cedar Rapids, Iowa.The case was assigned for trial before a jury at the January, 1935, term.On the 18th day of January, 1935, before the case was reached for trial, the following written stipulation was entered into and filed:

" Come now the plaintiff and the defendants, Iowa Chemical Company and C. E. Mueller, by their attorneys, and agree to waive trial to a jury and that said case may be tried to the court.

Dated this 18th day of January, 1935.

(Signed)Trewin, Simmons & Trewin,

Attorneys for plaintiff.

G. P. Linville,

Attorney for defendants, Iowa Chemical Company and C. E. Mueller."

On the same day the following record entry was made: " Now, to-wit, on this 18th day of January, 1935, this cause comes on for hearing before the court, Hon. F. O. Ellison, Presiding Judge, Trewin, Simmons and Trewin appearing as attorneys for the plaintiff, and G. P. Linville appearing as attorney for the defendant, Iowa Chemical Company, an Iowa corporation.* * * Both parties agree to waive a jury and try this case to the court or a judge."

On March 28, 1935, an amended and separate answer was filed for the Iowa Chemical Company(but not for C. E. Mueller), which, in addition to a general denial, by a separate county, included a counterclaim for damages against the plaintiff arising out of alleged damaging statements made by plaintiff's salesmen with respect to the Iowa Chemical Company, and also prayed for an injunction, and for equitable relief.This answer was signed by E. E. Collins as attorney for defendant.We do not set out in detail the claims of the Iowa Chemical Company as filed in its amended answer as these questions are not involved in the case at this time.

On the 17th day of June, 1935, after said cause had been assigned for trial before the court, without a jury, but before trial, the Iowa Chemical Company filed its motion for a continuance and demand for a jury trial, in which it alleged that the waiver of trial by a jury in said cause was made by the attorney then representing the Iowa Chemical Company without its knowledge or consent.To this motion for continuance and demand for jury trialplaintiff filed a resistance, and the cause came on for hearing on the motion and amendment thereto and the resistance filed.After argument thereon the court overruled said motion.The Iowa Chemical Company duly excepted, and from the ruling upon the said motion the Iowa Chemical Company has appealed to this court.

There are but two issues to be determined:

First.Did the attorney have authority to bind his client by the stipulation waiving a jury, which his client claims was made without its knowledge or consent?Second.The cause having been continued from the term at which the stipulation of waiver was entered into, was the waiver binding upon the defendant at a subsequent term?In this order we will discuss these questions.

I.

It is conceded that G. P. Linville was the attorney representing the appellant company at the time the general denial was filed and when the stipulation waiving the jury was entered into.He was duly employed to represent the company, and proceeded to do so.

When one hires an attorney to represent him in litigation, that attorney has full charge of the case as far as procedure and remedy are concerned.He is trained and skilled in the law.A client has no knowledge of procedure and intrusts this to the attorney he employs.

In 2 R.C.L. § 63, p. 986, we find the following: " An attorney of record, by virtue of his employment as such, subject to the approval of the court, has implied authority to do all acts necessary and proper to the regular and orderly conduct of the case, and affecting the remedy only and not the cause of action, and such acts, in the absence of fraud, will be binding on the client, though done without consulting him, and even against his wishes."

In 6 C.J. § 146, at page 641, it is said: " The general implied authority of an attorney by virtue of his employment includes the doing on behalf of his client of all acts in or out of court necessary or incidental to the transaction or management of the suit, or to the accomplishment of the purpose for which he has been retained, and which affect only the remedy and not the cause of action.The choice of proceedings, the forum, the manner of trial, and all matters of procedure, and the like are within the sphere of his general authority, and as to these matters his client is bound by his action."

In 6 C.J. § 147, at page 643, it is said: " The line of demarcation between the respective rights and powers of an attorney and his client is clearly defined.The cause of action, the claim or demands sued upon, and the subject matter of the litigation are all within the exclusive control of a client; and an attorney may not impair, compromise, settle, surrender or destroy them without his client's consent.But all the proceedings in court to enforce the remedy, to bring the claim, demand, cause of action or subject matter of the suit to hearing, trial, determination, judgment and execution are within the exclusive control of the attorney."

In the recent case of State v. Froah, reported in 220 Iowa 840, at page 845, 263 N.W. 525, 528, this court said: " The specifications of powers of an attorney contained in the Code do not exclude all other powers."Ohlquest v. Farwell & Co.,71 Iowa 231, 32 N.W. 277, 279, speaking of the powers of an attorney, says: " ‘ But he is, by his general employment, authorized to do all acts necessary or incidental to the prosecution or defense which pertain to the remedy pursued.The choice of proceedings, the manner of trial, and the like, are all within the sphere of his general authority, and, as to these matters, his client is bound by his action.’Rhutasel v. Rule,97 Iowa 20, 65 N.W. 1013."

In the case at bar, there is no question that the attorney was properly employed; that the stipulation was entered into that an order of court was entered, waiving a trial by jury.There is no evidence in this record which would show that Mr. Linville did not have authority to enter into the stipulation.In its motion and demand for jury trial, appellant alleged that the stipulation was entered into without authority upon the part of its attorney, but it offered no evidence to substantiate that charge.Mr. Linville is a lawyer of years of experience, and one who bears a high reputation as a member of the bar of Iowa.In a pleading appellant admits that it knew in January of 1935 the stipulation had been entered into, and yet it made no effort to set aside that stipulation or to inform the court that it desired a jury trial, until after two terms of court and almost five months had passed.The case involves a suit on an account.It is in the nature of an accounting...