Davis v. Hall

90 Mo. 659

• Court: Supreme Court of Missouri
• Decided: October 15, 1886
• Status: Published

Opinion

Black, J. —

This is an action of ejectment for one hundred and sixty acres of land in Jasper county. Both parties claim title from Thomas F. Phillips, the plaintiff by a sheriff ’ s deed and the defendants under a deed of trust and trustee’s deed. The plaintiff in this ease commenced a suit in the common pleas court of Jasper county, in 1876, against Phillips and others, and attached the land in question. The venue of the cause was changed to the Newton county circuit court. After the cause had reached that court, aud in the vacation thereof, the plaintiff’s attorney paid 'the costs and caused the clerk to make an entry dismissing the suit; this was done on the twenty-seventh of April, 1877. On the twenty-second of May, and in the vacation of the court, the plaintiff filed a motion to reinstate the cause, but gave the defendants in that suit no notice of the filing of the same. The court at the following term sustained the motion, and the plaintiff finally recovered judgment against the defendants, under which he sold and purchased the land and received the sheriff’s deed before mentioned.

After the attachment suit had been dismissed, and before the motion to reinstate had been filed, Phillips applied for and received of Mrs. Clark a loan of eight hundred dollars on the land. Abstracts showing a dismissal of the attachment suit were furnished her, but the deed of trust securing the loan bears date the -first of June, 1877, some ten days after the filing of the motion. There is evidence that the attorney’s authority was only that which he had by virtue of his engagement to commence and prosecute the suit. On the other hand there is evidence that several suits were pending between the parties to the attachment suit, and that plaintiff instructed the attorney to settle them, which he did on fair terms to plaintiff, and in compliance with that settlement dismissed the attachment suit.

1. For the appellant it is insisted that the plaintiff alone can dismiss his suit in vacation, under section 23, page 1061, 2 Wagner’s Statutes. The statute says the plaintiff in any suit in any court of record may dismiss the suit in vacation upon payment of all costs. No good reason is assigned for the construction of the statute here contended for, nor do we believe any can be given. The plaintiff’s authorized agent or attorney may dismiss the suit with the same effect as could the. plaintiff if he were before the clerk in person.

2. The trial court probably found as a fact that the attorney had special authority to settle the various suits and to dismiss the one in question; but under the instructions given and refused we must consider the extent of his power as if no such special authority had been given. It has been repeatedly ruled by this court that an attorney, merely from his employment as such, has no right to compromise the debt or claim of his client (64 Mo. 506 ; 56 Mo. 465 ; 55 Mo. 405); still the authority of the attorney in virtue of his employment extends to the conduct and management of the cause in which he is engaged, in and out of court; and he may do all things incidental to the prosecution of the suit, and which affect the remedy only and not the cause of action. He has authority to agree that the suit in which he is employed shall abide the judgment in another suit, the facts being the same, and the plaintiff being the same in the several suits. Railroad v. Stephens, 36 Mo. 150. He may stipulate that the other party may take judgment on a verdict then rendered without further notice. Barlow v. Steel, 65. Mo. 611. Elesewhere it is held he may discontinue a suit (Gaillord v. Smart, 6 Cow. 385); and release and discharge property from the lien of an attachment. Monson v. Hawley, 30 Conn. 51; Moulton v. Bowker, 115 Mass. 36. The dismissal did not affect the cause of action a,t all, but only the remedy. It follows, from the foregoing cases, as well as from the general rule, as before ■ stated, that the attorney had the power to dismiss the suit without special authority therefor. If there was any abuse of the authority the remedy is against him. Persons dealing with the property had a right to rely upon his act as being the act of the client.

3. The dismissal of the suit put the parties out of court, and the entry of the clerk was sufficient evidence of that fact. The lis pendens created by filing an abstract of the attachment in Jasper county ended with the dismissal of the cause. We do not see how the mere filing of a motion to reinstate with the clerk in vacation, and no notice thereof given to the defendants’ could operate as constructive notice to Mrs. Clark. The defendants were not in court until they subsequently appeared to the motion.

We see no reason for disturbing the judgment in this case and it is, therefore, affirmed.

All concur, except Brace J., absent.