270 Mass. 305 | Mass. | 1930
This is a petition for writ of review of a judgment for the plaintiff entered in a case begun in the Superior Court by writ dated May 19, 1928, in which the petitioner, by his guardian and next friend, was the plaintiff. At the hearing on the petition it appeared that Arthur L. Precious, a minor, was injured in an automobile accident on November 4, 1927, in which a motor vehicle driven by the defendant was involved, and brought an action to recover for the injuries in which an attorney appeared of record'for him. During the pendency of the action his attorney conferred with the attorney of record for the defendant in regard to a settlement, and the latter in behalf of the defendant agreed to pay the plaintiff $1,500 upon condition that he through his attorney would furnish the defendant with an agreement for judgment for that sum and agreement for judgment satisfied approved by the court, and a release signed by Arthur Precious, as guardian and next friend of the plaintiff of all claims against the defendant. The attorney for the plaintiff delivered to the attorney for the defendant an agreement for judgment in the sum offered, and a further agreement for judgment satisfied, both of which were signed by the attorney for the plaintiff and approved by the court. The attorney for the plaintiff also delivered to the attorney for the defendant a release in full of all demands, purporting to have been signed by Arthur Precious, guardian and next friend of the plaintiff. There appears of record in the action an
The trial judge ordered the writ of review to issue and at the request of the defendant reported the petition and his doings thereon to this court.
When the attorney undertakes to bind his client by an agreement to compromise his client’s substantial rights, the opposing party must ascertain at his peril whether the attorney has authority to make the settlement. Gibson v. Nelson, 111 Minn. 183. Upon the facts stated in the record, the agreement made was not binding on the plaintiff either when made or when approved by the court and filed in the case as the basis for judgment. Upon the statement in the record the approval of the court' must have been given without notice to the plaintiff or his guardian, or an opportunity for him to be heard. If at a hearing before the court a party has been given full opportunity to be heard, he cannot afterwards contend either that his counsel was without authority or that the settlement was not binding upon him. The judgment entered upon an unauthorized compromise agreement made by an attorney in settlement of his client’s claim may be set aside on the ground of lack of authority in the attorney to make the compromise on which it rests. Dalton v. West End Street Railway, 159 Mass. 221. United
All questions argued have been considered, and in the order that a writ to review the judgment issue we find no error.
Order that writ of review issue affirmed.