De Wandelaer v. Sawdey

• Decision Date: 08 March 1906
• Citation: 78 Conn. 664,63 A. 446
• Parties: DE WANDELAER v. SAWDEY.
• Court: Connecticut Supreme Court

63 A. 446

78 Conn. 664

DE WANDELAER

v. SAWDEY.

Supreme Court of Errors of Connecticut.

March 8, 1906.

Appeal from Superior Court, New Haven County; Silas A. Robinson, Judge.

Action by Mae De Wandelaer against Charles J. Sawdey. The action was dismissed by plaintiff, and Michael J. Byrne, as plaintiff's attorney, made application to have the cause restored to the docket on the ground that it was dismissed for the purpose of defrauding him of his fees and disbursements, and, from an order denying the application, he appeals. Affirmed.

Michael J. Byrne, for appellant James A. Peasley, for appellee.

HALL, J. The plaintiff brought an action for libel to the superior court in New Haven county on the first Tuesday of May, 1905, by a complaint signed by her attorney, M. J. Byrne, claiming $10,000 damages. There was filed a written withdrawal of the action without costs in favor of either party signed by the plaintiff and the defendant, which is indorsed as received by the clerk August 10. 1905, and filed September 2, 1905. On the 10th of the next October, at the next term of court, said attorney made a written application in his own name, asking that the case be restored to the docket. The application alleged that said attorney was retained by the plaintiff to bring and prosecute said action; that at the time of said employment the plaintiff informed said attorney "that she was without means, as aforesaid, and she did thereupon verbally assign to the subscriber so much of any judgment which might be obtained in said cause in her favor as would be necessary to compensate him for services rendered and disbursements made in her behalf in connection with said cause"; that after commencing the action said attorney paid out and obligated himself to pay out about $325 for fees for the service of attachment processes and clerk fees, and that he is unable to recover anything from the plaintiff either for such expense incurred, or for his own services; that the defendant and the plaintiff, "for the fraudulent purpose of cheating and defrauding the said Byrne as such attorney out of his fees and disbursements above mentioned, and to hinder and prevent him from recovering the same, secretly and without the knowledge and consent of said Byrne, fraudulently and wrongfully settled and compromised said action between them, the defendant paying the plaintiff about $160 in full settlement of all claims and demands in favor of the plaintiff against the defendant therein, * * * and it was thereupon agreed between them that said action should be withdrawn by the plaintiff without further costs to the defendant, and said action was thereupon withdrawn"; that "the defendant well knew that the plaintiff had no property or visible means before and at the time when said settlement was made, and that the plaintiff was wholly unable to pay the said Byrne for his costs and disbursements or for his said services"; that by means of the premises said Byrne will be deprived of all compensation for his services and expenses, unless relieved by the interposition of said court. The application asked that the action be restored to the docket of the court so that it might be proceeded with according to law and be prosecuted so far as might be necessary to protect the applicant's rights. The court denied said application.

The notice of appeal to this court is by the plaintiff Mae De Wandelaer; her name being signed thereto "by M. J. Byrne, her attorney." The appeal itself, with the caption of the title of the action of libel, states that "in the above-entitled cause the plaintiff appeals," etc., and is signed by "M. J. Byrne, Attorney for the Plaintiff," and the appeal bond is conditioned that the said plaintiff shall prosecute said appeal to effect and pay all costs therein if she shall fail to do so. The errors assigned in the appeal are: (1) In denying the motion of plaintiff's attorney to have the case restored to the docket; (2) in refusing to hear evidence in substantiation of the averments of the motion, and in deciding the motion without giving the plaintiff's attorney an opportunity to present such evidence: (3) and in assuming that by the withdrawal of the case the court was deprived of jurisdiction over it. It does not appear from the record that the trial court held that it had not jurisdiction to grant the application.

Regarding the opportunity given the attorney to present evidence, in support of the allegations of his application, the judgment file dated October 13, 1905, states that on that day "the parties appeared and were at issue to the court on said...