106 N.W. 129 | N.D. | 1905
Action upon a promissory note. Issue was joined toy service of answer November 27, 1901. In March, 1903, 'by leave of court, an amended answer was served. The case came on for trial regularly before a jury at Towner, McHenry county, at a regular term of the district court of that county, on June 27, 1903. At the request of C. J. Murphy, an attorney at law, residing in the city of Grand Forks, who was plaintiff’s attorney of record, one A. M. Christianson, an attorney, residing in Towner, appeared and conducted the trial for plaintiff. After introducing considerable* evidence, both oral and documentary, but before the case was formally submitted, Christianson moved to dismiss without prejudice, a course which was induced by the imperfect condition of certain depositions which he deemed essential to establish the plaintiff’s case, and judgment of dismissal was duly entered. Thereafter an order was issued to defendants to show cause why the judgment should not be set aside and the case reinstated for trial. The grounds of the motion were set out in a number of affidavits made by Christianson, Murphy and others, in which it was made to appear that the plaintiff did not engage Christianson to try the case; that he was merely engaged by Murphy, and had, therefore, as plaintiff’s counsel contend, no legal authority to act for plaintiff or to move to dismiss; and that unless the judgment of dismissal is set aside, and the case reinstated, the statute of limitations will be a complete defense to another action on the note. The motion to vacate was denied, and plaintiff appeals from the order.
We are of opinion that the court did not err in making the order in question. In reaching this conclusion is it unnecessary to discuss the extent of an attorney’s authority to- employ a substitute or subordinate. Upon the fa-cts of this case the -correctness of the order does not turn upon that question. The real question is whether the plaintiff -can be heard to s-ay that Christians-on was without authority to represent him. We are agreed that he cann-ot. Christianson is a regularly licensed attorney. Presumptively an attorney -has authority to represent the person whom he assumed to- represent. Weeks on Attorneys, section 196, an-d cases -cited. Also, 4 Cyc. 928, and -cases -cited. The business of the courts is transacted upon this assumption. It is not necessary, in the first instance, for the court or counsel for the adverse party to demand proof of the authority of an attorney to act. “The burden, is upon the person denying the authority.” In this case it was upon the plaintiff. He did not disclaim Christianson’s authority, but permitted the
It is a-ls-o urged that the general authority of an attorney does not include the -power to discontinue the action, and that the judgment of dismissal without prejudice, which was entered on -Christianson’s motion, should therefore be set aside. This contention is based upon an erroneous view of an attorney’s general authority. True the cause of action itself is under the -control of the client. Paulson v. Lyson, 12 N. D. 354, 97 N. W. 533. But the attorney “has the free and full control of a case in its ordinary incidents. * * * He has the exclusive -conduct -and management of the suit. He cannot giv-e a release or -discharge the cause of action; but he has exclusive control of the remedy, and may continue or discontinue it.” Weeks on Attorneys, section 220. “He may discontinue an action because that -relates to the conduct of the -suit and is within his retainer, and not to- the cause o-f action.” Barrett v. Railroad Company, 45 N. Y. 628, 635; Gaillard v. Smart, 6 Cow. (N. Y.) 385; McLeran v. McNamara, 55 Cal. 508; Simpson v. Brown, 1 Wash. T. 247; Nightingale v. Company, Fed. Cas. No. 10,264. The Supreme Court of Iowa, in Rhutasel v. Rule, 65 N. W. 1013, said- that authority to dismiss must -be specially -conferred; and in Steincamp v. Gaebel (Neb.) 95 N. W. 684, the language of the Iowa court was quoted with approval. In ou-r opinion that view is unsound in principle and against the weight of authority. The question as to- whether an action shall be dismissed relates to
In moving to dismiss without prejudice an attorney acts within his authority, and the client is -bound by his act. If the client is injured, his remedy, if any lie has, is against the attorney alone.
The order appealed- from is accordingly affirmed.