Wells v. Penfield

• Decision Date: 10 November 1897
• Docket Number: 10,653--(80)
• Citation: 72 N.W. 816,70 Minn. 66
• Parties: GENEVIEVE G. WELLS v. SARAH A. PENFIELD
• Court: Minnesota Supreme Court

72 N.W. 816

70 Minn. 66

GENEVIEVE G. WELLS v. SARAH A. PENFIELD

Nos. 10,653--(80)

Supreme Court of Minnesota

November 10, 1897

Appeal by defendant from an order of the district court for Hennepin county, Smith, J., vacating a judgment which was entered pursuant to the following stipulation:

"It is hereby stipulated by and between the respective parties the plaintiff and the defendant in the above entitled action and their respective attorneys, that the defendant may take judgment for dismissal upon the merits against said plaintiff upon all of the causes of action set forth in plaintiff's complaint in said action, without cost to either party. A. L Brice and J. T. Hutchinson,

"December 22nd, 1896. Attorneys for Plaintiff.

"Henry M. Farnam,

"Attorney for Defendant."

As the point on which the order is modified was made for the first time in this court, no statutory costs will be allowed appellant.

Henry M. Farnam, for appellant.

At common law, except in the two cases of fraud and collusion, a client was bound by every act which the attorney did and the ordinary acts of practice in the action then pending. Latuch v. Pasherante, 1 Salk. 86; Griffiths v Williams, 1 Term. R. 710. G. S. 1894, § 6184, gives to the attorney employed in an action full power to "bind his client" in the action or proceeding when the stipulation for judgment is made in open court. Bray v. Doheny, 39 Minn. 355, affirmed the common law and the legislation of this state in regard to the power of an attorney to bind his client by stipulation. To the same effect see Scarritt v. Moser, 48 Mo.App. 543; Thompson v. Pershing, 86 Ind. 303; Bonney v. Morrill, 57 Me. 368; Thompson, Trials, § 191. A stipulation for "dismissal on the merits" made by the respective attorneys in the action was regarded in Cameron v. Chicago, 51 Minn. 153, as res adjudicata. The judgment entered was in the nature of a contract made in good faith with attorneys having authority, and has the force and effect of a contract. Thompson, Trials, § 193.

The exceptions which constitute a proper case are: (1) Fraud. Fraud is never presumed, but must be clearly proved in order to entitle the party to relief on the ground that it has been practiced upon him. McCall v. Bushnell, 41 Minn. 37; Davidson v. Crosby, 49 Neb. 60. (2) Collusion. This charge also vanishes with the charge of fraud. The evidence does not sustain the finding that the stipulation was improvidently made. Hicks v. Stone, 13 Minn. 398 (434). Acts of the attorney done in the presence of plaintiff's husband who looked after the litigation were plaintiff's own acts. Moody v. Thwing, 46 Minn. 511.

Albert H. Hall, for respondent.

It is true as a general rule that an attorney, if he enters into stipulations pertinent to the matter intrusted to him, can bind his client, and in such case the court will still enforce his acts against his client in the particular business of his employment. 1 Wait, Pr. 242, 243, and cases cited. But an attorney cannot settle a suit and conclude the client in relation to the subject in litigation without special authority therefor. 1 Wait, Pr. 241, 242; Shaw v. Kidder, 2 How. Pr. 244; East River v. Kennedy, 9 Bosw. 543. An attorney by virtue of his retainer has no authority to dismiss his client's action without his knowledge or consent, so as to bar a recovery for the same cause. Hallack v. Loft, 19 Colo. 74. A solicitor has no authority, under his retainer, to surrender any substantial right of his client without his client's consent. Dickerson v. Hodges, 43 N.J.Eq. 45. An attorney has no implied authority to compromise his client's cause. Taylor v. Evans (Tex. Civ. App.) 29 S.W. 172; Hickey v. Stringer, 3 Tex. Civ. App. 45; Barton v. Hunter, 59 Mo.App. 610; Brockley v. Brockley, 122 Pa. St. 1. An attorney employed to defend a suit is not thereby clothed with any implied power of disposition over his client's property. Kronschnable v. Knoblauch, 21 Minn. 56. This court has clearly recognized the necessity for special authority on the part of an attorney to bind a client in matters determining his rights in an action. Albee v. Hayden, 25 Minn. 267.

The court has power to relieve a party to an action from a judgment or order obtained against him by reason of the negligence, ignorance or fraud of his attorney. The attorney is an officer of the court, and the court will exercise a supervision over the conduct of its officer and insist upon his just and fair dealing with his client. 1 Wait, Pr. 242, 243; Sharp v. Mayor, 31 Barb. 578; Quinn v. Lloyd, 36 How. Pr. 378; Brotherson v. Consalus, 26 How. Pr. 213; Brock v. Barnes, 40 Barb. 521; Hitchings v. Van Brunt, 38 N.Y. 335. The court may relieve a client by vacating or setting aside an agreement of his attorney improvidently made, or made under a clear mistake, or procured by fraud or collusion, or, perhaps, if the attorney is insolvent so that his liability will furnish no remedy. Bingham v. Board, 6 Minn. 82 (136); Rogers v. Greenwood, 14 Minn. 256 (333); Bray v. Doheny, 39 Minn. 355; Eidam v. Finnegan, 48 Minn. 53.

OPINION

CANTY, J.

The complaint in this action sets forth several causes of action for libel and slander. After the answer was served, the attorneys of the parties made a stipulation in writing, duly signed by them, that defendant take "judgment for dismissal upon the merits" against plaintiff without costs to either party. The stipulation was filed, the court ordered judgment accordingly, and judgment was entered thereon. At the time the stipulation was made, defendant paid to plaintiff's attorneys the sum of $ 100 in settlement of the case. Plaintiff at this time resided in Chicago, and, on learning of the disposition that had been made of the case, procured a substitution of attorneys, and then moved to set aside the judgment and stipulation for judgment. From the order granting the motion, defendant appeals.

In this order the court made "findings of fact," in which it is stated:

"The plaintiff had no knowledge that her attorneys had any intention of making any such settlement, or permitting any such judgment to be entered against her; neither had her attorneys any authority from her, other than their implied authority as her attorneys in the case, to make such settlement or stipulate for the entry of a judgment of that character; neither did the court, at the time the order for judgment was made, have any knowledge that the defendant paid any consideration for the stipulation for judgment, or that the plaintiff's attorneys had no direct authority from the plaintiff to make such stipulation. That the stipulation for judgment was improvidently made, was made without the plaintiff's authority, knowledge or consent, and was in fraud of her rights. That no part of the consideration received by the plaintiff's attorneys for entering into the stipulation was ever paid to the plaintiff, and that the plaintiff's said attorneys were, and...