De Witt v. Smartz

San Fran. Dist Ct

De Witt v. Smartz

2 Cal. Dist. Ct. 13

DecidedSeptember 15, 1857

StatusPublished

This text of 2 Cal. Dist. Ct. 13 (De Witt v. Smartz) is published on Counsel Stack Legal Research, covering San Fransisco District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

De Witt v. Smartz, 2 Cal. Dist. Ct. 13 (sfdistct 1857).

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Opinion

Horton, J.

— The complaint is altogether too vague and indefinite in its averments for the purposes of this action. To obtain a decree in order to enforce compliance with a stipulation entered into in another action, would require great care in drawing up the complaint. It would probably be necessary to set forth all the facts and circumstances of the cause in which the stipulation was executed, or at least all those having reference to, or affecting, the subject matter of the agreement itself. In this casé it further appears that the stipulation in question was signed by defendant’s counsel, and not by her personally. It may well be doubted whether an attorney can stipulate his client into a law-suit. It would seem that such a stipulation could only be enforced in the' action in which it is given, although if an averment that the attorney entered into it with the special authority, or consent of the client, and upon a sufficient consideration, could be satisfactorily sustained, the agreement might be binding upon the latter, and liable to be enforced by action.

Demurrer sustained, with leave to amend upon payment of costs.

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Horton, J.

— The complaint is altogether too vague and indefinite in its averments for the purposes of this action. To obtain a decree in order to enforce compliance with a stipulation entered into in another action, would require great care in drawing up the complaint. It would probably be necessary to set forth all the facts and circumstances of the cause in which the stipulation was executed, or at least all those having reference to, or affecting, the subject matter of the agreement itself. In this casé it further appears that the stipulation in question was signed by defendant’s counsel, and not by her personally. It may well be doubted whether an attorney can stipulate his client into a law-suit. It would seem that such a stipulation could only be enforced in the' action in which it is given, although if an averment that the attorney entered into it with the special authority, or consent of the client, and upon a sufficient consideration, could be satisfactorily sustained, the agreement might be binding upon the latter, and liable to be enforced by action.

Demurrer sustained, with leave to amend upon payment of costs.

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Bluebook (online)

2 Cal. Dist. Ct. 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-witt-v-smartz-sfdistct-1857.