Howard v. Town of Osceola

| Wis. | Feb 15, 1868

Cole, J.

It is objected, that we cannot review on writ of error the ruling of the circuit court directing judgment of discontinuance, even if that ruling is erroneous. But this is a mistake. The affidavits read on the motion are incorporated in the bill of exceptions; and exceptions were properly taken to the ruling of the court directing that a judgment of discontinuance be entered in the action. The question, therefore, whether the judgment of discontinuance should have been entered- under the circumstances, is fairly presented by the record; and upon that question we think the ruling of the circuit court erroneous. For we are satisfied, from the affidavits, that the settlement was collusive — made for the purpose of defrauding the attorney out of his compensation. It is quite likely that the plaintiff did not intend any wrong to her attorney. She was applied to privately for a settlement of the action, when she had no opportunity to consult her attorney. She says that she was poor and needed the money, and that she did not understand her rights. Under these circumstances, she agreed to take the sum offered, because she was urged to do so by the agents of the town; but she says she should not have accepted that sum had she fully understood her rights. It would, therefore, be unjust to attribute to her a meditated fraud, although, if the discontinuance is permitted to stand, it will deprive the attorney of all compensation for services rendered. Where a settlement is privately effected between the parties, with the design of preventing the attorney from obtaining his compensation, as this was, it should be set aside. For that this was the intention on the part of the agents of the town, we think is clear from the affidavits. It appears that the town order, upon which suit was brought, was given to the attorney of the plaintiff at the commencement of the action, and has remained in his possession ever since. It further appears that the understanding between the plaintiff and her attorney was, that he was to be paid for his services in collecting the money on the order, out of the avails of the judgment, and that the plaintiff has no means to pay him except in this way. Upon the strength of this understanding, the attorney has advanced money and rendered services. And we have no doubt that he has a lien for compensation upon the order, by well established principles. The authorities cited by the counsel for the plaintiff show that such is the law. See likewise Chappell v Cady, 10 Wis., 112.

We think, notwithstanding the settlement, the attorney of the plaintiff should be allowed to proceed and collect the costs in the action, and his fees, that he may thereby secure compensation for his services.

By the Court. — The judgment of discontinuance is reversed, and the cause remanded for further proceedings in accordance with this decision.