164 Wis. 619 | Wis. | 1917
In support of the judgment it is urged that the stipulation of record in the municipal court pleaded in the answer constitutes a bar to the action. The stipulation was:
“It is hereby stipulated and agreed that the above entitled action is hereby discontinued without costs as to defendant Matt Rettler, and the answer of Matt Rettler heretofore served and filed herein be and the same is hereby withdrawn from this action; and th'e plaintiff bank may take judgment in this action against the remaining defendant, John J. Rett-ler, if it so desires, such defendant John J. Rettler being in default and mailing no appearance or defense in this action.”
The words “without costs” were interlined in pen by plaintiff’s attorney. That a stipulation to dismiss does not constitute a bar to the action was held in Bishop v. McGillis, 82 Wis. 120, 51 N. W. 1075. It was there also intimated that a stipulation for a dismissal without costs would have no broader or different construction than a mere stipulation to dismiss, since in both eases the only thing agreed upon was a dismissal; and that the terms of dismissal could not be held
Assuming, but not deciding, that parol testimony was admissible to show the agreement entered into between the attorneys for the respective parties in the municipal court, we reach the question whether an agreement by an attorney to dismiss an action upon the merits is valid without evidence of special authority so to do. In Kelly v. Wright, 65 Wis. 236, 26 N. W. 610, this court said:
“It requires no citation of authorities to show that an attorney, by virtue of his retainer alone, has no authority to compromise a valid claim for $300 against a person presumably solvent and responsible by accepting in full satisfaction thereof the note of an irresponsible person for $80. Because there is no proof of authority to make the settlement tlie plaintiff is not bound by it, unless he afterwards ratified it.” Page 239.
In the present case there is no prcof of authority to make the settlement and no proof of ratification. The record show's that judgment was taken in the municipal court against John J. Rettler and a transcript thereof filed in another county where he owned some incumbered, real estate. The judgment against him remains wholly unsatisfied. Kelly v. Wright has been followed in Fosha v. O'Donnell, 120 Wis. 336, 97 N. W. 924, and it is the general rule in most jurisdictions that an attorney, by virtue of his retainer alone, does not have the implied authority to enter a retraxit. See 2 Ruling Case Law, 992 and cases cited, and note to Sheffer v. B. B. Perkins & Co. (83 Vt. 185, 75 Atl. 6) in 25 L. R. A. n. s. 1313. The trial court therefore erred in holding the agreement to dismiss upon the merits made by plaintiff’s attorney binding upon it.
By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.