139 Ga. 702 | Ga. | 1913
Lead Opinion
Mrs. M. C. Davis filed her petition against the' First National Bank of Blakely, seeking to have a consent decree which had been previously rendered set aside, and to obtain other relief. Two amendments were made thereto. General and special demurrers were filed, and were sustained; and the plaintiff excepted.
In England, after some conflicting discussion, it seems now well settled, by the later decisions, that an attorney, by virtue of his general retainer, has power to compromise a suit, provided he does not violate the instructions of his client in so doing; and that such a compromise will bind his client, even if he does violate instructions, unless the violation is known to the adverse party. A distinction has been drawn between matters directly involved in the litigation and matters collateral thereto. 3 Am. & Eng. Enc. Law (2d ed.), 362; Prestwich v. Poley, 18 C. B. (N. S.) 806. In America there is some conflict of authority, but the greater number of decisions hold that an attorney has no power to compromise a claim, action, or judgment of his client. Clark v. Randall, 9 Wis. 135 (76 Am. D. 252, and note 261, 262); Levy, Simon & Co. v. Brown, 56 Miss. 83, 88; Whipple v. Whitman, 13 R. I. 512 (43 Am. R. 42). Where the latter rule prevails, it has been said that the fact that a compromise made by an attorney in excess of his authority has been consummated by a consent judgment entered in pursuance of it does not render the compromise thus consummated binding on ihe client, although it will make the court less inclined to disturb it, and will render prompt action and a reasonable show of merit on the part of the client necessary to secure its annulment. 3 Am. & Eng. Enc. Law (2d ed.), 362. On the other hand it has been held that “In an action by a client to set aside a judgment against him, rendered without his authority upon a compromise of his claim by his attorney at law, his right of recovery in the action in which such judgment was rendered will not be inquired into; but the judgment should be set aside, the suit be again placed upon the docket, and the ease proceed in the same manner as if such judgment had never been rendered.” Smith’s Heirs v. Dixon, 3 Met. (Ky.) 438. See also Dalton v. West End Street Railway Co., 159 Mass. 221 (34 N. E. 261, 38 Am. St. R. 410). It is unnecessary to discuss the limitations upon
Under the English rule the authority of an attorney in regard to the litigation was analogized to that of a general agent. But where that rule has been adopted, it has generally been declared that an attorney at law can not make a compromise of a litigation, and consent to a judgment or decree to carry it into effect, against the express instructions of his client, when such instructions are known to the other party. Thus, in Wharton on Agency, after the author has advocated the English rule, he says (§ 594) : “If the opposite party knows that the attorney is without authority or acts in disobedience to his client, the compromise will not be enforced to the injury of the client.” Beliveau v. Amoskeag Manufacturing Co., 68 N. H. 225 (40 Atl. 734, 44 L. R. A. 167, 73 Am. St. R. 577); Weeks on Attorneys, § 228; Brady v. Curran, 2 I. C. L. 314; Strauss v. Francis, L. R. 1 Q. B. 379.
Not long before our first code was adopted, the question of the authority of counsel was the subject of much discussion in England. In 1854 Samuel Swinfen died, leaving a will. Its validity was contested. Sir F. Thesiger, afterward Lord Chelmsford, appeared for the legatee, who was also the executrix of the will. He entered into a written memorandum of compromise, by one of the terms of-which the estates were to be conveyed by the plaintiff to the defendant, and the defendant was to secure to the plaintiff an annuity for her life. It was agreed that either party could make this agreement a rule of court. A juror was thereupon withdrawn, and the compromise was made a rule of the court of common pleas. Mrs. Swinfen insisted that the arrangement had been made not only without her sanction but directly in opposition to her wishes, and she declined to perform it. A rule nisi was obtained against her to show cause why she should not be attached for contempt for disobedience of the rule. The three judges of the common pleas were of the opinion that she was bound by the consent of her counsel; but they thought that there was not sufficient evidence of a demand for performance, and a refusal on the part of Mrs. Swinfen, to justify an attachment. Swinfen v. Swinfen, 18 C. B. 485 (O. S.) 485, decided in 1856. Another application for attachment was made. Crowder, J., delivered an opinion, declaring that
In 1859, the ease of Fray v. Voules, 1 El. & El. 837, was decided. An attorney of the name of Voules, against the directions of his client, compromised her case, and a consent order was taken therein. She sued him for damages; and it was held that “An attorney retained to conduct a cause, and having express directions from the client not to enter into a compromise, has no power, under such retainer, to enter into any compromise, even though it be reasonable and bona fide, and for the benefit of the client, and, if he do so, is liable to an action for damages, though the damage actually sustained be nominal.”
These cases have been somewhat fully set out, because shortly thereafter our first code was framed and adopted, and they throw light upon the existing state of the decisions in England at that time. Three sections of the original code are relevant to the subject under consideration. Section 382 has already been quoted in full. It referred to the authority of attorneys to bind their clients in any action or proceeding, by any agreement in relation to the cause, made in writing, etc. Section 383 declared that “Without special authority attorneys can not receive anything in discharge of a client’s claim but the .full amount in cash.” Section 385 referred to relieving a party from the results of the conduct of an attorney who assumed to represent such party without authority. Let us now review the decisions of this court bearing on the subject of compromises of litigation by attorneys, and their power to bind their clients thereto by consenting to judgments or decrees. It may be stated that the code and the decisions generally follow the English rule, at least in part; and that the decisions hold that if an attorney at law consents to the taking of a compromise decree in a .case in which he. is employed, it is binding upon his client, in the
In Lyon v. Williams, 42 Ga. 168, it was held that a confession of judgment by counsel, without any special authorization to that effect, was sufficient to bind his client. In Platen v. Byck, 50 Ga. 245, it was held that, without special authority, an attorney could bind his client by an agreement for the dissolution of a garnishment and the depositing of the fund to await the event of the suit. In the opinion of McOay, J., occurs this significant statement: “It is no answer to say that Mr. Hardin [the attorney for the complaining party] acted unwisely, or even corruptly, in making this agreement, unless Byck [the other party] was a party to or had knowledge of the corruption.” The intimation is that if the other party had been affected with knowledge it would have made a difference. In Glover v. Moore, 60 Ga. 189, it was held that a married woman who entrusted the defense of a. suit at law to counsel chosen by herself was bound by his acts to the extent that 'any other suitor would be; and that if her plea were withdrawn by her counsel on terms executed by the other side, and judgment were rendered against her without any fraud on the part of her adversary or his counsel, such judgment would be binding on her. No question of the making of a compromise by counsel against the express direction of his client was involved.
In Williams v. Simmons, 79 Ga. 649 (7 S. E. 133), it was again ruled that á decree rendered by consent of counsel for a married woman, without fraud, would bind her, as it would bind other litigants. In the opinion there are some expressions to the effect that it is no answer to a solemn judgment of a court, rendered by consent of counsel, f.or the client to come in and say that the counsel misrepresented the client’s interests or wishes; and that if the client were injured thereby, she would have an action against
In Lewis v. Gunn, 63 Ga. 542, and Perkerson v. Reams, 84 Ga. 298 (10 S. E. 624), and other similar cases, no question of the violation of an express direction not to compromise, known to the adverse party or his counsel, was involved.
The question of the power of an attorney to bind his client by a consent judgment, in spite of a direction by .the client not to compromise, was before this court in Rogers v. Brand, 133 Ga. 759 (66 S. E. 1095). The Justices at that'time constituting the court were evenly divided in opinion, Chief Justice Eish, Presiding Justice Evans, and the writer being of the opinion that the client in that case should not be held bound, but the judgment should be set aside; while Justices Beck, Atkinson, and Holden were of the contrary opinion. The judgment accordingly was affirmed by operation of law. In Rogers v. Pettigrew, 138 Ga. 528 (75 S. E. 631), the attorney for the plaintiff in the case last cited, who had made the compromise, sought to foreclose his lien for fees on certain land which was awarded to his client by the consent decree. It was held that an attorney who compromises his client’s case against the latter’s express direction is not entitled to any compensation. In the opinion Presiding Justice Evans cited Fray v. Voules (sub nomine Fray v. Vowles), 1 El. & El. 837, and said: “A litigant has the right to insist that his ease be adjudicated according to the established rules of law and procedure. When he instructs his attorney not to compromise his case, the attorney is bound by such instructions, and is not at liberty to violate them, even though the attorney honestly believes a compromise settlement would be to
Section 4955 of the Civil Code does not mean that when a client employs an attorney to bring or defend a suit, it ceases to be the client’s litigation, that he has no power to say whether he will litigate or compromise his suit, and that the attorney becomes the owner or absolute master of the litigation, so as to be able to sell or give away his client’s property rights by contract, in spite of his client. This is a very different thing from the management of the litigation and agreements connected therewith, such as agreeing to a reference of the case to an auditor or a submission of it to arbitration, to allow; copies of papers to be used in evidence, to waive notices, and the like. Neither does the statutory lien which an attorney has upon a suit, which ordinarily prevents his client from settling or dismissing the case so as to defeat him' of his fee, have the effect to entirely oust the client from the case.
It was contended that fraud, in order to set 'aside a judgment, must be fraud on the part of the adverse party or his attorney; and expressions of this sort have been used in some of the decisions.
It was contended that the plaintiff should be held to be bound by the agreement of her attorneys, and that she should be remitted to a suit against them for damages, if she were injured by their conduct. We have seen that the decisions have not held that tlu client was compelled to elect such a remedy, if there was a violation of instructions as to compromising, which was known to the adverse party. Unfortunately the members' of the bar are not always opulent, and are sometimes even insolvent. Daniel Webster is said to have tersely described the career of a lawyer by the words “work hard, live well, and die poor.” Leading and honored members of the profession not infrequently accumulate more learning than lucre. If it should be laid down as an absolute rule that a lawyer could in all cases bind his client by a compromise put into the form of a consent decree or judgment, regardless of instructions to the contrary, and regardless of knowledge thereof on the part of the adverse party, it will readily be seen that occasions might arise where a client’s entire property involved in litigation might be agreed away, in spite of his protest, and he might be remitted to a suit by which nothing could be realized.
It was argued that the plaintiff had in the former case elected the remedy of suing the bank for double the usurious interest claimed to have been paid to it, and that she was bound by that election. But when the amendments to the former petition were withdrawn, and it was restored to its original condition, the election would seem to have been abrogated. Nor are we prepared to hold
Judgment reversed, with direction.
Concurrence Opinion
I concur in the judgment, under the allegations made in the petition as amended, but not in all of the reasoning by which the result is reached.