Garvin v. Crowley, 116 Wis. 496

Garvin v. Crowley

116 Wis. 496 | Wis. | 1903

Maeshall, J.

Bespondent’s counsel moved the court to dismiss the appeal for insufficiency of the notice of appeal and return to this court. We are unable to discover sufficient merit in the motion to warrant treating the matter at length. Tbe notice of appeal is in the usual form and perfect in every respect. Tbe return is likewise free from defects. Counsel seems to have confused decisions of this court on appeals froni orders with those on appeals from judgments like this. Bespecting the former, the return is required to identify the-papers transmitted as those upon wbicb the motion was beard, and to show that they are all of sucb papers, wbicb may bo done by the certificate of the clerk or the order appealed from. Sec. 3050, Stats. 1898; Glover v. Wells & M. G. Co. 93 Wis. 13, 66 N. W. 799; Hoffman & Billings Mfg. Co. v. Burdick, 95 Wis. 342, 70 N. W. 470; Tenney v. Madison, 99 Wis. 539, 15 N. W. 979; Superior Consolidated L. Co. v. Superior, 104 Wis. 463, 80 N. W. 739; Ryan v. Philippi, 108 Wis. 254, 83-*501N. W. 1103. As to the latter the statute requires the return to'contain the record, which, when there is no bill of exceptions, .consists of the judgment roll. See. 3050, Stats. 1898. In determining the appeal, all intermediate orders involving the merits and necessarily affecting the judgment, and all orders appearing upon the face of the record (the judgment roll), may be reviewed without úny exceptions having been taken thereto. Sec. 3010, Id. The certificate of the clerk to the return is required to be to the effect that the papers transmitted are the originals or copies thereof, and are transmitted pursuant to the appeal. Sec. 3050, Id. The certificate of thé clerk here substantially complies with that. It is annexed to the notice of appeal as the statute requires. It states that such papers are the originals and are all the papers that have been filed in the clerk’s office, and are transmitted to the clerk of the supreme court “pursuant to the annexed notice.” If the return were to be tested by the jurisdictional essentials of an appeal from an order, it would be sufficient, ■because the judgment, by appropriate recitals, refers to the papers and proceedings upon which it is based, and they were all transmitted. Testing it, as it must be, by the jurisdictional essentials of an appeal from a judgment, there is no defect, as the judgment roll is here with a proper certificate identifying it. Testing it as to whether the alleged errors appear on the face of the record, it is sufficient.

Coming down to the merits of the appeal, we are at a loss to understand upon what principle of law the court reached the conclusion that appellant’s attorney obtained the stipulation by fraud, permitting discontinuance of the action without costs. We must assume that reference was made to something more than mere deception; that the learned judge supposed he discovered, in the proof submitted to him, facts constituting a violation of legal rights, accomplished by deception practiced upon the defendant without such fault upon his part as to preclude the court from granting him relief. In *502tliat tbe court must bave relied upon respondent’s mere statement that he did not understand the stipulation and that he was prevented from doing so by the wrongful conduct of plaintiff’s attorney. We are unable to see any legitimate foundation for that. It must be assumed, nothing appearing to the contrary, that respondent was a man of ordinary common sense, and could read and understand simple, plain English words. lie had ample opportunity to read the stipulation, and there is enough in his affidavit to indicate that he did so. Certainly, there is nothing in the moving papers to-indicate that he was dissuaded from doing so by appellant’s attorney. The language of the stipulation could not reasonably convey any other meaning to a person of mature years- and common understanding than that it cut off all opportunity of respondent to recover a judgment for costs; that it practically terminated his connection with and interest in the litigation. His statement that he did not understand its effect is not entitled to a moment’s consideration, even if there were proof that the design of appellant’s attorney was to obtain the stipulation without respondent’s knowing its effect. The law on that subject is too plain to warrant taking time to discuss it. However, there is not a word in respondent’s affidavit showing that the effect of the paper was misrepresented to him hy plaintiff’s attorney. The most that is claimed is that the latter said, in effect, that the paper operated to release respondent from all liability on the note and that it was fair,, and that there was no necessity for him to exhibit the paper to his attorney. All that was true from a legal standpoint. Kespondent had a legal right to sign the paper and drop out of the case without consulting his attorney. The latter had' no right which the court could recognize, to prolong the litigation merely for the purpose of recovering a judgment for costs in his client’s favor if such client desired to drop out of the case, regardless of his motive in the matter. If the court considered that it was a fraud upon respondent that could be *503dealt w'itb judicially, for appellant to secure a plainly worded stipulation from bim in tbe absence of bis attorney, merely because of such absence and tbe respondent’s claim, without any reasonable ground to support it, that be did not understand tbe paper, was clearly wrong.

Tbe finding tbat tbe stipulation was a fraud upon respondent’s attorney because of bis contract limiting his compensation in tbe action, in tbe main, to such-costs as be might secure in respondent’s favor against appellant, is not supported by tbe legal principle which we apprehend tbe circuit court supposed ruled tbe matter, namely, tbat an attorney in an action has such an interest in tbe cause of action or claim involved, there being an agreement between bim and bis client, known to tbe opposite party, entitling bim to compensation for bis services out of tbe amount recovered, tbat if a settlement be made between tbe parties for tbe purpose of preventing such attorney from enjoying tbe benefit of bis contract, it may be set aside and tbe attorney permitted to prosecute tbe cause of action to tbe extent of recovering enough to compensate bim for bis services. Courtney v. McCavoch, 23 Wis. 619. Tbat applies only where there is a claim or cause of action upon which a recovery can be bad independently of a mere judgment for costs. It has no reference whatever to a mere defense. The idea tbat an attorney can acquire a lien of either a legal or an equitable character upon tbe mere right of bis client to defend against tbe claim or cause of action of tbe plaintiff, precluding the parties from settling tbe litigation independently of bim, regardless of their motives therefor, is without support in principle or authority, so far as we are aware.

If it were not for what has been said tbe judgment would have to be reversed for tbe following reasons: (1) Tbe furthest tbe court could properly have gone on tbe motion, even if tbe rule which tbe circuit judge hád in mind applied to tbe case, was to have vacated the'stipulation and order dis*504missing the action, leaving the case to stand against respondents as it was before the stipulation was made. To follow that without a trial of the issue raised by the answer to the complaint, by arbitrarily entering a judgment dismissing the complaint with costs against the plaintiff, was entirely wrong. (2) There having been one judgment entered in the action, a second judgment was improper. Except in situations provided for by section 2883, Stats. 1898, not including such a one as that before us, all the issues in every action must be closed by a single judgment. Sellers v. Union L. Co. 36 Wis. 398; Scott v. Reese, 38 Wis. 636; Singer v. Heller, 40 Wis. 544; Treat v. Hiles, 75 Wis. 265, 44 N. W. 1088; Sherman v. Menominee R. L. Co. 11 Wis. 23, 45 N. W. 1079; Gage v. Allen, 84 Wis. 330, 54 N. W. 627; Trustees of St. Clara Female Academy v. Delaware Ins. Co. 93 Wis. 57, 66 N. W. 1140; Hyde v. German Nat. Bank, 96 Wis. 406, 71 N. W. 659. The relief to which respondent would have been entitled, and the form of it, under any circumstances, in view of the fact that a judgment had been entered in the case, was a modification of such judgment so as to include a recovery by respondent for costs, or the granting of a motion dismissing the action as to him with motion costs in his favor.

■ By the Court. — The judgment of the circuit court is reversed.