141 Wis. 119 | Wis. | 1909
The principal error assigned consists in relieving- the defendant from the stipulation of March 15, 1907. That conduct is sought to be supported on the ground, amongst others, that such stipulation was beyond the power of the defendant’s attorney. The powers of attorneys at law in charge of litigation are very broad, and while it may be that the general retainer is not sufficient to authorize an absolute surrender of substantive property rights which the attorney is employed to establish and enforce (Fosha v. O’Donnell, 120 Wis. 336, 97 N. W. 924), still it is and must be sufficient to enable the attorney in his honest judgment to control all matters of procedure in the action brought for such enforcement. Weeks, Attorneys (2d ed.) § 221; Read v. French, 28 N. T. 285, 293. In this case the plaintiff had a clear and absolute right by statute (see. 3074, R. S. 1878) to make proof of title and right to possession acquired subsequent to the commencement of the action, upon payment of the costs accrued up to the time of claiming such right, and, probably, upon some form of procedure sufficient to fairly notify defendant. Whether such procedure should be by notice, by application to the court, or by supplemental pleading is not now material
A contention is m.ade, somewhat ambiguously, that the stipulation never came into effect or that it lacks mutuality, because not signed by John H. Paul, the attorney who signed the summons and for whom no substitution had been made. There are two answers to this contention: First, that it is. fully established that the firmrnf Van Dyke, Van Dyke & Carter, with consent of Mr. Paul, had full authority from the-plaintiff as its attorneys to conduct the litigation, and that defendant’s attorney knew it; also that said firm had already taken some steps, and executed certain papers, in the procedure of the case as attorneys for plaintiff. Walker v. Bogan, supra; King v. Bitchie, 18 Wis. 554. Further, the stipula
Tbe court, however, set the stipulation aside upon tbe expressly stated ground that on tbe defendant’s part it bad been improvidently made. We confess our inability to discover any improvidence. Beyond doubt, it ujas fully understood by defendant’s attorney who was intrusted with discretion to malee it. As already stated, it granted no new right to the plaintiff except absolution from a small amount of costs, and ■did that in acquisition to defendant of certainty of right to .amend tbe answer without difficulty or formality, which at the time was at most a. mere conditional privilege resting in the discretion of the court, upon tbe granting of which costs might properly have been imposed upon him. When to that is added the fact that defendant exercised the right so granted to him by the stipulation after due period for reflection and has rested upon that right for some ten years, we feel no hesitation in declaring the finding of improvidence in antagonism to all the disclosed facts.
While we of course recognize broad discretion in trial ■courts to relieve parties from stipulations and admissions when improvident and induced by fraud, misunderstanding, ■or mistake, or rendered ■ inequitable by the development of a new situation, as in Brown v. Cohn, 88 Wis. 627, 636, 60 N. W. 826, yet that is a judicial discretion to be exercised in promotion of justice and equity and not in subversion thereof. Stipulations differ in their character. Some are mere admissions of fact simply relieving a party from the inconvenience
It is urged that, even were the stipulation not set aside, the judgment of nonsuit was proper because the plaintiff, being an Illinois corporation, is not competent to acquire or own this real estate, the law of Illinois not according such a corporation power to hold real estate beyond the needs of its general business. This contention might well be answered by the consideration that defendant has not proved the law of Illinois, and we cannot take judicial notice that it differs from that of Wisconsin. But a more complete answer is that inability of a corporation, foreign or domestic, to' acquire title to any property cannot be raised by a stranger claiming the property unless, perhaps, such inability results from express statutory prohibition. Such merely ultra vires acts can be •questioned only by persons directly interested in the corporation, or by the state, whose charter and franchises are exceeded or abused. John V. Farwell Co. v. Wolf, 96 Wis. 10, 70 N. W. 289, 71 N. W. 109; Att’y Gen. ex rel. Askew v. Smith, 109 Wis. 532, 541, 85 N. W. 512; Security Nat. Bank v. St. Croix P. Co. 117 Wis. 211, 217, 94 N. W. 74; Cowell v. Springs Co. 100 U. S. 55; Christian Union v. Yount, 101 U. S. 352; American B. Soc. v. Marshall, 15 Ohio St. 537.
No question is raised or decided whether the excluded ■deeds, if in evidence, would prima facie establish title in plaintiff to the parcel in controversy. The rulings of the trial court are considered on the hypothetical assumption that they would do so, apparently made both by that court and by counsel here. The confusion of descriptions, and perhaps of grantors, is such that we should not undertake analysis of the surveys or the chain of title in absence of discussion.
By the Court. — Judgment reversed and cause remanded for a new trial.