Summary
In Balzer the Wisconsin Supreme Court held that the defendant was bound by the settlement executed by his attorney in open court despite that defendant was not present in court and did not sign the agreement.
Summary of this case from Allison v. Ticor Title Ins. Co.Opinion
February 7, 1951 —
March 6, 1951.
APPEAL from a judgment of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
W. Curtis Farmer of Sun Prairie, for the appellant.
For the respondents there was a brief by Roy B. Hovel of Sun Prairie, attorney, and Spohn, Ross, Stevens Lamb and Edwin C. Pick of counsel, all of Madison, and oral argument by Mr. Pick and Mr. Hovel.
Plaintiffs brought suit against the defendant for trespass consisting of encroaching upon their adjoining lot with reinforcement footings for his building and foundation wall. Defendant counterclaimed for trespass by plaintiffs upon his lot by building a fence. From a judgment entered pursuant to the terms of a stipulation by counsel for the parties, defendant appeals.
When the case was called for trial plaintiffs, their attorney, and witnesses were in court. Defendant was not present, but planned on coming the second day. He was represented by his present counsel.
The court made inquiry as to whether there was a possibility of settlement and those present willingly engaged in a settlement discussion which resulted in an agreement that all causes of action would be dismissed upon delivery by plaintiffs to defendant of a quitclaim deed to the land in dispute and payment by defendant of the sum of $450 to plaintiffs.
A stipulation in writing was prepared by the court reporter and signed on August 28, 1950, by the plaintiffs and their attorney, and by defendant's attorney. There was a line for the signature of the defendant who was not present.
Following the affixing of the signatures the court dictated an order dismissing the complaint and counterclaims upon their merits, to take effect upon the compliance by the parties with the terms of the stipulation. This order was dictated in the presence of the attorneys.
The following day plaintiffs' attorney tendered a quitclaim deed to defendant's attorney and was advised that defendant would not go through with the settlement. Demand on behalf of the plaintiffs for payment of the $450 was made both upon defendant's counsel and upon the defendant.
On August 30, 1950, plaintiffs obtained an order to show cause why judgment should not be entered against defendant for $450 pursuant to the requirements of the stipulation. On September 1st, upon the return of the order to show cause, defendant's attorney appeared. Defendant neither appeared in person nor filed any affidavit, although the order to show cause had been served upon him personally as well as upon his counsel.
The court entered judgment requiring the defendant to pay to plaintiffs the sum of $450 and directing the clerk of court to turn over to defendant the plaintiffs' quitclaim deed when the judgment was satisfied.
Counsel for appellant contends that the judgment must be reversed because the findings upon which it is based are contrary to the great weight of the evidence.
The trial court found that the stipulation did not contemplate the signature of the defendant and was complete without it.
Counsel contends that there being upon the face of the document language that the stipulation was entered into by the parties and their attorneys and a line for the defendant's signature, it shows conclusively that the stipulation was to be binding only when signed by the parties. It is urged that plaintiffs have not proved that defendant's attorney had authority to enter into the stipulation on behalf of his client.
The rule generally is that an attorney has no power to bind his client by a compromise agreement.
"While the general rule is usually applied at any stage of the proceedings to enforce a claim, from the time it is placed in the hands of the attorney until final judgment and satisfaction thereof, a distinction is recognized . . . as to the power of an attorney to compromise during the progress of the suit in open court and at other times, . . ." Anno. 66 A.L.R. 121.
This court has recognized unusual power in attorneys engaged to handle litigation.
"Indeed, the quotation relied on by appellant from 1 Jones, Evidence (4th ed.), p. 492, sec. 258, excludes such an attorney from its definition of agent. The author said:
"`An attorney who is retained generally or without reference to pending litigation is but an agent.'
"The implication is plainly that one retained for pending litigation is not to be treated as a mere agent. Counsel on neither side were able to cite any cases bearing upon this question, but we attribute the scarcity of cases to the fact that the foregoing analysis has never been questioned on the part of the bar generally." Estate of Briese (1941), 238 Wis. 516, 519, 300 N.W. 235.
In Shequin v. Shequin (1915), 161 Wis. 183, 186, 152 N.W. 823, plaintiff wife sued for divorce from bed and board and the trial court entered judgment for divorce absolute. She appealed. The court affirmed the trial court and said:
"The record shows that the judgment was entered by consent of the attorneys for the plaintiff.
". . . the consent of the plaintiff's attorneys to the rendition of the judgment is binding upon plaintiff and the prayer of the complaint may be treated amended accordingly."
In Milwaukee v. West Allis (1941), 236 Wis. 371, 384, 294 N.W. 625, it was said:
"We consider that both parties should be bound by the agreement made by the counsel before the commission. It is comparable to a stipulation made in open court, acted upon by the court. Such stipulation binds both parties according to its terms."
Upon all of the facts and circumstances of this case we are of the opinion that there was ample evidence to hold that defendant had clothed his attorney with apparent authority to settle a case involving as little as this case did. Certainly, if the attorney exceeded his authority by settling a case which his client wished to litigate, the defendant had the burden of demonstrating this to the trial court upon learning of such unauthorized act This he failed to do when the opportunity was accorded upon the hearing on the order to show cause.
We are satisfied that the findings are not against the great weight of the evidence but rather that the record sustains the trial court's conclusions that the stipulation was authorized by the defendant. The judgment based thereon is valid.
By the Court. — Judgment affirmed.