Timmons v. Holmes

• Decision Date: 09 April 1958
• Docket Number: No. 49370,49370
• Citation: 249 Iowa 888,89 N.W.2d 371
• Parties: Robert C. TIMMONS, Janet J. Timmons, Charles E. Townsend, Marilyn L. Townsend, Charles E. Bunce, Delia E. Bunce, Plaintiffs-Appellees, v. John B. HOLMES and Mary Lou Holmes, Defendants-Appellants.
• Court: Iowa Supreme Court

Page 371

89 N.W.2d 371

249 Iowa 888

Robert C. TIMMONS, Janet J. Timmons, Charles E. Townsend, Marilyn L. Townsend, Charles E. Bunce, Delia E. Bunce, Plaintiffs-Appellees, v. John B. HOLMES and Mary Lou Holmes, Defendants-Appellants.

No. 49370.

Supreme Court of Iowa.

April 9, 1958.

Robert E. Dreher, Des Moines, for appellants.

Tesdell & Miller, Des Moines, for appellees.

HAYS, Justice.

The petition alleged defendants were maintaining a dance studio in their home in violation of the zoning ordinance of the City of Des Moines. A permanent injunction restraining such use was prayed. Charles F. Wasker, a duly licensed attorney at law, appeared for the defendants and filed a motion to dismiss and subject thereto, for a more specific statement. These motions were submitted to the Court on oral argument and written briefs. Both motions were overruled on February 16, 1957. On March 16, 1957, a decree granting relief as prayed for was entered in the case. There had been no further hearing before the court, or further pleading by the defendants. The decree bears the following endorsement, 'Approved as to form. Hanrahan & Wasker, By Charles F. Wasker.'

Thereafter Wasker withdrew from the case. Attorney Robert E. Dreher appeared for the defendants and on March 22, 1957, filed an application to set aside the decree and permit an answer to be filed. A hearing thereon was had and testimony taken. This application was overruled on May 13, 1957, and hence this appeal.

Defendants concede that Wasker was authorized to appear in the case for them but contend that he was not authorized to consent that a decree be filed.

I. Section 610.16, Code 1954, I.C.A., provides, 'An attorney and counselor has power to: * * *. 2. Bind his client to any agreement, in respect to any proceeding within the scope of his proper duties and powers; * * *.' In Ohlquest v. Farwell & Co., 71 Iowa 231, 233, 32 N.W. 277, 279, it is said, 'It is undoubtedly true that an attorney cannot consent to a judgment against his client, or waive any cause of action or defense in the case; neither can he settle or compromise it without special authority. 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.' See also, Rhutasel v. Rule, 97 Iowa 20, 65 N.W. 1013; Shores Co. v. Iowa Chemical Co., 222 Iowa 347, 268 N.W. 581, 106 A.L.R. 198; State v. Benson, 247 Iowa 406, 72 N.W.2d 438; 5 Am.Jur., Attorneys at Law, sections 85 and 86; 7 C.J.S. Attorney and Client §§ 79, 80 and 81.

II. A judgment by consent is in substance a contract of record made by the parties and approved by the Court. 49 C.J.S. Judgments § 173. It is not a judicial determination of any litigated right. New York Central & H. R. R. Co. v. T. Stuart & Son Co., 260 Mass. 242, 157 N.E. 540; State ex rel. Paine v. Glover, 165 Wash. 567, 5 P.2d 1014; State v. Huebner, 230 Ind. 461, 104 N.E.2d 385.

In the case at bar, Defendants' duly authorized attorney, in the exercise of his judgment and discretion, saw fit to act in the manner authorized under Rule 104, R.C.P., 58 I.C.A. By his motion to dismiss the trial court was required to make a judicial determination, which it did adverse to defendants. Again counsel was called upon to determine what step to take and, in the exercise of his discretion, elected to stand upon his original motion to dismiss which, of course, resulted in a decree against his clients. Such procedure is recognized and authorized under Rule 86, R.C.P.

Appellants...