American Emigrant Co. v. Long

Waterman, J. — It appears by tacit admission that this is one of a number of actions involving a like federal question. One of these cases (American Emigrant Co. v. Rogers L. M. Works, 83 Iowa, 612), was, by writ of error to this court, taken to the supreme court of the [195] United States, and there disposed of adversely to the claim of the plaintiff herein. See Rogers L. M. Works v. American Emigrant Co., 164 U. S. 559 (17 Sup. Ct. Rep. 188). The other cases were continued from time to time, waiting the decision of the federal tribunal. In accordance with the holding in the last-mentioned case, this at bar must 'be reversed if a hearing on its merits can be had. But appellee urges certain objections to onr consideration of the issues involved, and to these we shall give due attention. 1 II. This action was originally brought by one J. A. Harvey, as attorney for plaintiff, and be continued to act as counsel in the case for many years. The suit was begun in the year 1877. The record does not disclose that Harvey ever withdrew his appearance as attorney. Notice of appeal was served upon him by defendants, and it is now claimed that he had ceased to act as attorney in this case some mouths before such notice was served, and 'therefore the case is not properly in this court. [198] á [195] III. It is also claimed there is no showing that we have all the evidence before us, because the certificate of the judge to the transcript is defective. The notice of appeal, spoken of, wasservedNovember9,1889. Thereafter counsel for defendants herein, and one J. J. Davis, who it is admitted was at the time one of counsel for plaintiff, entered into the following written stipulation: “ American Emigrant Company v. Julius Daniels, et al., and other similar appeals. Appeal from Oalhoun District Court. Stipulation. Whereas, appeals have been regularly talien and perfected by the above plaintiff and defendants, or by the plaintiff and defendants respectively, from final judgments and decrees of the district court of Iowa within and for Oalhoun county in the following entitled actions, which appeals in each of said [196] actions are as shown.'below, namely: The American Emigrant Company v. Isabelle M. Long, et al. (No. 315.) Appeal by defendants; also, appeal by plaintiff. [About fifty other eases are here recited.] Now, with a view to saving expense touching transcripts and records, and to prevent all questions which might arise from loss of original papers, or other casualty, it is 'hereby stipulated and agreed as follows: (1) That, the plaintiff and defendants, respectively, in all of the actions above enumerated, took appeals to the supreme court of Iowa, as above set out and shown, which appeals in each instance were taken by said plaintiff and defendants, respectively, by serving, within six months from the date of the decree, in each instance, on the attorneys of record of the adverse party or parties, .and on the clerk of the district court of Calhoun county, a notice, in writing, of appeal to the supreme court of Iowa, in all cases in accordance with law, and 'by at once filing such notices of appeal in the office of the clerk of said court, aud having the same entered on 'the appearance docket in each case. (2) It is also, stipulated and agreed that, in each case in which an appeal or appeals was or were taken as shown above, all of the evidence offered or introduced on the trial of each of such actions in the court below was certified and made of record 'by the judge before whom such actions were tried in the court below, within six months after the dates of the judgments a,nd) decrees, respectively,and, so certified, was filed with the certificates aforesaid in the office of the clerk of said court within six months next after the dates of said judgments amid decrees, respectively, and at once entered upon the .appearance docket of said court. (3) The defendants shall proceed to prosecute their appeals in the following named cases, or such of them as they may see fit, not less than two; namely: The American Emigrant Company v. Julius Daniels [197] et al. (No. 98.) The American Emigrant Company v. Jacob Rogers et al. (No. 116.) The American Emigrant Company v. Helen M. Skidmore. (No. 147). The American Emigrant Company v. Isaac H. Knox et al. (No. 300.) The American Emigrant Company v. The Iowa Land & Loan Co. et al. (No. 301.) And the plaintiff shall proceed to prosecute its appeals in the following cases, or such of them as the^ may see fit, namely: * « And all other appeals above mentioned, on both sides, shall stand continued, without prejudice to either party, and without being docketed in the supreme court, until the decision of said court in the appeals which may be prosecuted as herein provided. J. J. Davis, attorney for plaintiff in all the cases. Chas. A. Clark, attorney for all the defendants in all the cases.” The terms of this stipulation seem to have been observed; by all parties until after the death of Davis, which occurred in the year 1897. It is now claimed that Davis had mo authority to make any such agreement. The stipulation covers the matters complained of, and we think plaintiff is bound by it. It was within the scope of Davis’ authority as an attorney to make an agreement as to the record, and, under the circumstances of this case, we think the stipulation that an appeal had been in fact taken was binding. As indicating the authority of an attorney in relation to the management of an. action, we call attention to the following cases: Ohlquest v. Farwell, 71 Iowa, 233; In re Heath’s Will, 83 Iowa, 215; Lockwood v. Black-Hawk County, 34 Iowa, 235. As to the objection to the notice of appeal, we wish to say further that this isi not a case of attempting to give this court jurisdiction by consent. A notice was in fact served, ¡and served upon one who had appeared in the cause below, and whom the record showed to be still an attorney in the case. The statute provides (section [198] 3178, Code 1873) that notice of .appeal may 'be served, “on the adverse party., his agent or attorney who appeared for him in the court, below.” We are inclined to think that the service was sufficient, under the law; but, if not, the agreement made it .so, — especially after the parties have acted upon such agreement for many years. We clo not know why Harvey’s authority as a.n attorney, though he had withdrawn from the case, could not be recognized by the plaintiff far enough to give him the right to accept ¿service of a notice of appeal, even if the authority went no further, and this we think k what was done; The case will he reversed.