41 Ill. 136 | Ill. | 1866
delivered the opinion of the Court:
Although the better practice undoubtedly is, not to dismiss a suit in the absence of plaintiff’s counsel, upon motion of defendant’s counsel based upon a stipulation to that effect, signed by the plaintiff in person, yet we cannot set aside the action of the court merely for that reason, and in the absence of proof that the stipulation was fraudulently or improperly obtained. After an attentive examination of the affidavits filed in this case, we cannot see that the officers of the city resorted to fraud, misrepresentation, or illegal means of any sort, in making the compromise. Some of them may have plied the plaintiff with arguments to an extent from which a high-minded man would have shrunk in any controversy he might have with a woman, but mere violations of good taste or scrupulous propriety are not within our jurisdiction.
Heither can we agree with appellant’s counsel in the position that the plaintiff had no power to make the stipulation by which the suit was dismissed. The statute vested in her, as administratrix, the right of action and the legal title to whatever damages were recoverable. This, of necessity, gave her the legal right to control the prosecution and disposition of the suit, as an administrator has in other cases. Whether the children who, with herself, were interested in the distribution of whatever damages might have been recovered, can call her to account for any error of judgment she may have committed in making this settlement, is a question to be decided when they make the attempt. The application to set aside the order of dismissal is not made in their behaT, but in her own. For aught that appears they are satisfied with the settlement, and she is certainly concluded by it. It is not pretended that there was any collusion between her and the city to defraud the children, or that she was not acting in the utmost good faith in regard to their interests. Had collusion for this purpose been shown, a different question would have been presented.
The counsel for appellant also insists that he had an attorney’s lien on the claim for damages which could not be defeated by the act of his client, and which gave him a right to prosecute the suit to judgment. The extent of an attorney’s lien is not very well defined, and the cases in the Hew York Eeports are especially conflicting. We are not, however, inclined to hold, that the lien attaches to a claim for unliquidated damages prior to the judgment.
In Gitchel v. Clark, 5 Mass. 309, on an application similar to the present, the court, refusing the motion, said, “ before judgment it was very clear the plaintiff might settle the action and discharge the defendant, without or against the consent of his attorney, who had no lien on the cause for his fees.” A similar rule is laid down in Foot v. Tewksbury, 2 Vt. 97; Shank v. Shoemaker, 18 N. Y. 489, and Sweet v. Bartlett, 4 Sanf. 66, and we regard it as by far the sounder principle. To hold that the lien attaches to a claim for unliquidated damages before judgment would embarrass parties in all attempts to settle their suits amicably, and thereby greatly tend to prevent a result always held to be desirable. Especially would this be the case under a system of practice like ours, where the compensation of attorneys is not fixed by law. Under such a rule, attorneys, by making a demand for unreasonable fees, would be able to prevent a settlement whenever they should desire. Highly as we think of our profession, we do not deem it desirable that they should thus be able to control the most important interests of their clients, independently of the wishes of the latter. It is better that clients should be at liberty to adjust their difficulties if they can. In the particular case before us, we have no doubt it would be most equitable to allow the lien. But we cannot establishithe rule in reference to the merits of a particular case. “ Hard cases make bad law.” We think such an application of the lien as is here asked would be against the current of authorities and the general interests of sociéty.
Judgment affirmed.
