Rhutasel v. Rule

Granger, J. [23] I. The record presents the question of the authority of an attorney to dismiss an action merely because of his general employment to prosecute it. Section 218 of the Code specifies certain powers possessed by attorneys, bub the specifications seem to be limited to powers to execute written instruments in the name of his client, to bind his client by agreements, and to receive money claimed by his client, and discharge the claim or judgment. It is not thought that the powers thus defined are exclusive of all others. Ohlquest v. Farwell, 71 Iowa, 231 (32 N. W. Rep. 277), deals with the powers of an attorney under a general employment to prosecute a suit, and, while the point now under consideration was not involved, the language of the opinion is in aid of a conclusion in this case. In that case it is said: “It is undoubtedly true that an attorney cannot consent to a judgment against his client, or waive any cause of action or defense in the case. But he is, by his general employment, authorized to do all acts necessary or incidental to the prosecution or defense which pertain to the remedy pursued. The choice of proceedings, the manner of trial, and the like, are all within the sphere of his general authority, and as to these matters his client is bound by his action.” The case then holds that the power to consolidate actions is within the general authority, because it “pertains to the remedy pursued, ,to the manner of trial, and is not an agreement for judgment or a compromise.” It is then said: “The [24] parties are not deprived of a trial, nor is judgment rendered by consent.” The foregoing language seems to have support on authority, and its effect is to deny the rights of an attorney, under a general employment to prosecute a suit, to dismiss it. His employment is to prosecute, and, in an important sense, it is inconsistent with a power to dismiss the suit. It is reasonable to .say that such a power should be specially delegated. The quoted language, above, indicates strongly that an attorney so employed shall not do what will deprive his client of a trial. His implied powers are such as are necessary or incidental to the prosecution or defense which he is employed to conduct. Appellee cites Wilkins v. Treynor, 14 Iowa, 391, and Crist v. Francis, 50 Iowa, 257. In each of those cases the plaintiff himself dismissed the action, so that the question of authority is in no way involved. 2 II. Appellant relies somewhat on the conduct of the plaintiff, after she knew of the dismissal, as ratifying what had been done by her attorney. She states in her affidavit that from what Liggett said .to her after the dismissal she believed the case was not absolutely dismissed, but that it would be tried the same as if the dismissal had not been entered. On this branch of the case the question was one for the district court, and, with the holding that the dismissal was without authority, the discretion of the court was not abused in ordering the reinstatement. It opens the case for a hearing on the merits, which is the method to be desired. 3 III. Plaintiff’s appeal is from a refusal to order a default entered, and to give judgment thereon. The refusal was because the action was then on appeal in this court. The question on the appeal was what we have now determined as to the cause being for trial on its merits. Without determining any other question, it is sufficient to say that [25] the court had a discretion as to whether the appeal should be determined, settling the rights of the parties to such a trial before the trial should be had. The action of the court on both appeals is affirmed.