Cronkhite v. Evans-Snider-Buel Co.

Wells, J. The first thing requiring our attention, is the motion of the defendant in error to dismiss these proceedings for the reason that the plaintiff in error has voluntarily accepted the benefits of the judgment of the court-below, and is, therefore, estopped from prosecuting error, to reverse the same. It appears from the record and the evidence offered that, on June 17, 1893, judgment was rendered for the plaintiff in error and against the defendant in error for costs, amounting to $62.15, which was immediately paid into court. On June 24, J. A. Smith, the attorney of record for the plaintiff in error, demanded, received, and receipted for $23.50, deposition fees due the plaintiff. On July 7, 1893, the same attorney demanded, received, and receipted for, five dollars and a half, another deposition fee due the plaintiff, and on January 25, 1894, he also demanded, received, and receipted for the balance of the money in the hands of the clerk belonging to the plaintiff, amounting to fifteen dollars, deposited by him as security for costs. The plaintiff in error, in opposition to this motion, says, in substance, that soon after the rendition of the judgment he discharged his attorney, J. A. Smith, and that the money was drawn without his knowledge or consent and applied on Smith’s fees for services in the case ; and that his rights should, therefore, not be prejudiced by Smith’s conduct. J. A. Smith, the attorney of record for the plaintiff in this case, who tried it in the court below, prepared and served the case-made and caused it to be settled by the judge after he had withdrawn two of the amounts mentioned ; he appeared in this court at its last term and orally argued this cause, and, finally, on November 27, 1897, filed a reply brief herein. Ac [175] cording to the claim of the plaintiff in error, Smith was the attorney who began the case, and was his attorney up to the rendition of the judgment, and after-wards was his attorney in the same case on July 31 and September 1, 1893, and on November 11 and 27, 1897, but was not his attorney on June 24 and July 7, 1893, nor on January 25,1894 ; and no notice was ever served upon any one of the termination of Smith’s employment. This playing fast and loose cannot be approved by this court. Mr. Smith was the attorney of record of the plaintiff in error in this case, and his acts as such were the acts of his client, unless the parties with whom he dealt had notice of the cessation of his authority. As was said by the Supreme Court of Missouri : “The attorney is the agent of the party employing him, and in the court stands in his stead, and any act of the attorney must necessarily be considered as the act of the client. A different principle would lead to endless confusion and difficulty in the administration of justice.” Gehrke v. Jod, 59. Mo. 523. That a party who accepts the benefits of a judgment is estopped from prosecuting a proceeding to review the same, has been decided so often by the Supreme Court and by this court that it can be assumed as the settled law on that question. The motion to dismiss this proceeding in error will be sustained, and it is ordered dismissed at the costs of the plaintiff in error. McElroy, J., concurring. Mahan, T. J., having been of counsel, not sitting.