Mr. Justice Elliott
delivered the opinion of the court.
1. An attorney retained to prosecute a cause has no implied authority to compromise it. His duty is to maintain, not to sacrifice, his client’s cause. By virtue of his retainer he may do everything fairly pertaining to the prosecution; but an agreement to surrender or compromise any substantial light of his client is beyond the scope of his employment, and is not binding without express authority. Mechem on Agency, § 813; Weeks on Attorneys, § 219; 2 Freeman on Judgments (4th ed.) § 463; Dickerson v. Hodges, 43 N. J. Eq. 45; Isaacs v. Zugsmith, 103 Pa. State, 77; Davidson v. Rozier, 23 Mo. 387; Vail v. Conant, 15 Vt. 314; Wadhams v. Gay, 73 Ills. 415.
2. At common law judgments in civil actions are known by various names indicating their nature and effect, such as respondeat ouster, quod recuperet, nil capiat, nonsuit, retraxit, and the like.
By statute in this state judgments are distinguished as interlocutory and final; and final judgments are again distinguished as judgments of nonsuit or dismissal, and judgments upon the merits. Code, chapter 10.
A judgment of nonsuit, or mere dismissal, is no bar to another action for the same cause. But a judgment upon the merits is final and conclusive upon the parties unless suspended or set aside by some proper proceeding.
3. “ A retraxit,” says Blackstone, “ differs from a nonsuit, in that the one is negative, and the other positive; the non-suit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action.” Book 3, p. 296.
[81]*81It is improper to enter a retraxit, or a judgment in the nature of a retraxit and having the effect of a judgment upon the merits, without the personal consent of the plaintiff in the action. Such is the rule of the English common law; and, in the absence of statute, such is the rule in this country. Bacon’s Abridgment, title Nonsuit, vol. 7, p. 215; Am, & Eng. Ency. of Law, title Attorney & Client, 7; 1 Freeman on Judgments (4th ed.) § 3; Bridge v. Sumner, 1 Pick. 370; Lambert v. Sanford, 2 Blackford (Ind.) 137; Thomason v. Odum, 31 Ala. 108; Lowry v. McMillan, 8 Barr (Pa.) 163; Barret v. Third Ave. R. R. Co., 45 N. Y. 636.
On the trial defendant admitted plaintiff’s' original cause of action to be correct as stated in his complaint, and rested his defense entirely upon his plea of former judgment, or res judicata. Thus the burden of proof was upon defendant to sustain such plea, or plaintiff was entitled to recover.
It is contended by counsel for appellant that the judgment in the former action was in effect a judgment of retraxit, or a judgment upon the merits between Loft and Hallack, and, therefore, a complete bar to the present action.
It is essential to a retraxit that the plaintiff in person consent to the dismissal of his action. The record of the judgment in this case does not show the consent of either party in person; nor does it show the appearance of either party in person at the time the judgment of dismissal was rendered; nor does it show that the court adjudged that any settlement or dismissal of the cause had been agreed upon between the parties. It is true, the record refers to “ a stipulation filed herein.” But, whose stipulation? The record is silent. What were the terms of the stipulation ? The record is again silent, except as it may be inferred that the terms were that the cause was settled and was to be dismissed at the costs of plaintiff. From the files of the cause a stipulation was produced, reciting that the action “ is settled and hereby is dismissed at the unpaid costs of the plaintiff, and said dismissal may be entered of record.” But it is well settled that such a document among the files is no part of the record of a cause, [82]*82and can only be made such by bill of exceptions or other appropriate action by the court incorporating the same into the record. See Fryer v. Breeze, 16 Colo. 325, and cases there cited. Moreover, the stipulation upon which it is assumed the court rendered judgment, did not purport to be the stipulation of the parties but of the attorneys; and there was nothing in the record or in the stipulation to indicate that plaintiff ever authorized his attorneys to enter into any stipulation whatever for the settlement or dismissal of his cause.
The defendant introduced no evidence except the record and the stipulation to support his plea of res judicata. These did not correspond to the averments of the plea. They did not show that the former action was fully settled or settled at all by and between the plaintiff herein and the defendant herein, nor did they show that the former action was distnissed as per stipulation of the parties then and there made and entered into, as was alleged in the plea. The very gist of the defense relied on was, therefore, not supported by the evidence, and so judgment was properly given in favor of plaintiff.
4. But even if the former judgment might, upon its face, be considered a judgment upon the merits, nevertheless, the finding of the trial court was right upon another ground.
The replication was not challenged by demurrer or otherwise. It appears to have been regarded by the trial court as sufficient in law and equity as a reply to the plea of res judicata. It was undoubtedly sufficient in substance for that purpose. By its averments of fact in detail, as good equity pleading requires, the judgment relied on as a defense to this action was directly and explicitly impeached as fraudulent. Under o,ur practice legal and equitable relief may be had in the same action. Code, §§ 59, 70. If the matter contained in the replication had been set forth in the complaint, it would without question have been a proper mode of seeking equitable relief in connection with the claim sued on. That the facts impeaching the former judgment were first set forth in the replication was a matter of form rather than substance. Defendant was fully advised of the matters relied on to over[83]*83come his plea; he was also entitled to controvert such matters by evidence at the trial, and so was not deprived of any substantial right. Code, § 71. Having gone to trial upon an issue thus formed, the objection to the evidence produced in support of the replication, on the ground that it was a collateral attack upon the judgment which he had pleaded as a defense, was not well taken ; nor is it to be assumed from anything in this opinion that such objection would have availed anything before the trial. The right to attack a judgment for jurisdictional infirmity, or for fraud, is not confined to the complaint; it extends as well to the answer and replication. Thompson v. Whitman, 18 Wall. 457; Marr v. Wetzel, 3 Colo. 2; Wilson v. Hawthorne, 14 Colo. 533; Seeley v. Taylor, 17 Colo. 73; Harshey v. Blackmarr, 20 Ia. 181, et, seq.; 2 Freeman on Judgments (3d ed.) §§ 486, 576.
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Mr. Justice Elliott
delivered the opinion of the court.
1. An attorney retained to prosecute a cause has no implied authority to compromise it. His duty is to maintain, not to sacrifice, his client’s cause. By virtue of his retainer he may do everything fairly pertaining to the prosecution; but an agreement to surrender or compromise any substantial light of his client is beyond the scope of his employment, and is not binding without express authority. Mechem on Agency, § 813; Weeks on Attorneys, § 219; 2 Freeman on Judgments (4th ed.) § 463; Dickerson v. Hodges, 43 N. J. Eq. 45; Isaacs v. Zugsmith, 103 Pa. State, 77; Davidson v. Rozier, 23 Mo. 387; Vail v. Conant, 15 Vt. 314; Wadhams v. Gay, 73 Ills. 415.
2. At common law judgments in civil actions are known by various names indicating their nature and effect, such as respondeat ouster, quod recuperet, nil capiat, nonsuit, retraxit, and the like.
By statute in this state judgments are distinguished as interlocutory and final; and final judgments are again distinguished as judgments of nonsuit or dismissal, and judgments upon the merits. Code, chapter 10.
A judgment of nonsuit, or mere dismissal, is no bar to another action for the same cause. But a judgment upon the merits is final and conclusive upon the parties unless suspended or set aside by some proper proceeding.
3. “ A retraxit,” says Blackstone, “ differs from a nonsuit, in that the one is negative, and the other positive; the non-suit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again, upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action.” Book 3, p. 296.
[81]*81It is improper to enter a retraxit, or a judgment in the nature of a retraxit and having the effect of a judgment upon the merits, without the personal consent of the plaintiff in the action. Such is the rule of the English common law; and, in the absence of statute, such is the rule in this country. Bacon’s Abridgment, title Nonsuit, vol. 7, p. 215; Am, & Eng. Ency. of Law, title Attorney & Client, 7; 1 Freeman on Judgments (4th ed.) § 3; Bridge v. Sumner, 1 Pick. 370; Lambert v. Sanford, 2 Blackford (Ind.) 137; Thomason v. Odum, 31 Ala. 108; Lowry v. McMillan, 8 Barr (Pa.) 163; Barret v. Third Ave. R. R. Co., 45 N. Y. 636.
On the trial defendant admitted plaintiff’s' original cause of action to be correct as stated in his complaint, and rested his defense entirely upon his plea of former judgment, or res judicata. Thus the burden of proof was upon defendant to sustain such plea, or plaintiff was entitled to recover.
It is contended by counsel for appellant that the judgment in the former action was in effect a judgment of retraxit, or a judgment upon the merits between Loft and Hallack, and, therefore, a complete bar to the present action.
It is essential to a retraxit that the plaintiff in person consent to the dismissal of his action. The record of the judgment in this case does not show the consent of either party in person; nor does it show the appearance of either party in person at the time the judgment of dismissal was rendered; nor does it show that the court adjudged that any settlement or dismissal of the cause had been agreed upon between the parties. It is true, the record refers to “ a stipulation filed herein.” But, whose stipulation? The record is silent. What were the terms of the stipulation ? The record is again silent, except as it may be inferred that the terms were that the cause was settled and was to be dismissed at the costs of plaintiff. From the files of the cause a stipulation was produced, reciting that the action “ is settled and hereby is dismissed at the unpaid costs of the plaintiff, and said dismissal may be entered of record.” But it is well settled that such a document among the files is no part of the record of a cause, [82]*82and can only be made such by bill of exceptions or other appropriate action by the court incorporating the same into the record. See Fryer v. Breeze, 16 Colo. 325, and cases there cited. Moreover, the stipulation upon which it is assumed the court rendered judgment, did not purport to be the stipulation of the parties but of the attorneys; and there was nothing in the record or in the stipulation to indicate that plaintiff ever authorized his attorneys to enter into any stipulation whatever for the settlement or dismissal of his cause.
The defendant introduced no evidence except the record and the stipulation to support his plea of res judicata. These did not correspond to the averments of the plea. They did not show that the former action was fully settled or settled at all by and between the plaintiff herein and the defendant herein, nor did they show that the former action was distnissed as per stipulation of the parties then and there made and entered into, as was alleged in the plea. The very gist of the defense relied on was, therefore, not supported by the evidence, and so judgment was properly given in favor of plaintiff.
4. But even if the former judgment might, upon its face, be considered a judgment upon the merits, nevertheless, the finding of the trial court was right upon another ground.
The replication was not challenged by demurrer or otherwise. It appears to have been regarded by the trial court as sufficient in law and equity as a reply to the plea of res judicata. It was undoubtedly sufficient in substance for that purpose. By its averments of fact in detail, as good equity pleading requires, the judgment relied on as a defense to this action was directly and explicitly impeached as fraudulent. Under o,ur practice legal and equitable relief may be had in the same action. Code, §§ 59, 70. If the matter contained in the replication had been set forth in the complaint, it would without question have been a proper mode of seeking equitable relief in connection with the claim sued on. That the facts impeaching the former judgment were first set forth in the replication was a matter of form rather than substance. Defendant was fully advised of the matters relied on to over[83]*83come his plea; he was also entitled to controvert such matters by evidence at the trial, and so was not deprived of any substantial right. Code, § 71. Having gone to trial upon an issue thus formed, the objection to the evidence produced in support of the replication, on the ground that it was a collateral attack upon the judgment which he had pleaded as a defense, was not well taken ; nor is it to be assumed from anything in this opinion that such objection would have availed anything before the trial. The right to attack a judgment for jurisdictional infirmity, or for fraud, is not confined to the complaint; it extends as well to the answer and replication. Thompson v. Whitman, 18 Wall. 457; Marr v. Wetzel, 3 Colo. 2; Wilson v. Hawthorne, 14 Colo. 533; Seeley v. Taylor, 17 Colo. 73; Harshey v. Blackmarr, 20 Ia. 181, et, seq.; 2 Freeman on Judgments (3d ed.) §§ 486, 576.
In support of his replication plaintiff testified positively that he never settled the cause, nor agreed to dismiss it, and never gave his attorneys or either of them authority so to do; that he never had any notice whatever of the dismissal; that he had asked one of his attorneys several times what had become of the case, and that in reply he was informed that nothing came out of it, that it was dropped, and that there was nothing in it. This testimony was not contradicted in any manner ; it was responsive to, and fully supported, the averments of the replication. Thus the judgment upon which defendant relied was successfully impeached and overthrown.
5. In behalf of appellant it is further contended that the judgment of dismissal in the former suit must be held to have been a judgment upon the merits by force and effect of certain provisions of the code. By virtue of these provisions it is urged that an attorney of a party may, without the consent or knowledge of his client, settle, compromise, and dismiss his action, so as to forever bar his right to recover for the same cause. Chapter 10 of the Code is cited in support of this view. It reads as follows :
“ Sec. 166. An action may be dismissed or a judgment of nonsuit entered in the following cases:
[84]*84“ First. By the plaintiff himself, at any time before trial, upon the payment of costs, if a counterclaim has not been made.
“ Second. By either party, upon the written consent of the other.
“ Third. By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal.
“ Fourth. By the court, when upon trial, and before the final submission of the case, the plaintiff abandons it.
“ Fifth. By the court, upon motion of the defendant, when upon the trial, the plaintiff fails to prove sufficient case for the jury.
“ Sec. 167. In every case, other than those mentioned in the last section, the judgments shall be rendered upon the merits.”
When a settled rule of the common law — a rule plain, clear and salutary, a rule of general recognition and immemorial usage — is sought to be changed by statutory enactment, it is to be expected that the statute will express the change in clear and unambiguous language, leaving little or nothing to construction or inference.
The theory that chapter 10 of the code authorizes an attorney to dismiss his client’s action, without his knowledge or consent, so as to forever bar a recovery for the same cause, •.seems exceedingly far fetched. Were it not that the opinion in Merritt v. Campbell, 47 Cala. 542, lends support to such theory, we should not deem the point worthy of discussion. The other cases cited are explainable upon other grounds. Phillpotts v. Blasdel, 10 Nev. 19; United States v. Parker, 120 U. S. 89.
Reading chapter 10 carefully, does it anywhere affirmatively appear that an attorney is authorized to settle and dismiss his client’s cause of action by the entry of a judgment upon the merits without his client’s knowledge or consent ? Certainly not. There is no mention of what an attorney may, or may not do, in the entire chapter ; nor is the word [85]*85attorney, or any word or words having the same or similar meaning, contained in the chapter. What, then ? “ Oh,” it is said, “ the chapter provides for a judgment of nonsuit or dismissal in five certain kinds of cases; that is, under five different kinds of circumstances; it also provides that in every case-other than the five mentioned, ‘judgments shall be rendered on the merits.’ ”
The argument is, that as the judgment of dismissal in the former suit was not rendered under circumstances corresponding to either of the five specified cases of nonsuit or dismissal, therefore it must be considered a judgment upon the merits. Such reasoning leads to the absurd result that if a party can by any means succeed in procuring a dismissal or nonsuit of his adversary’s action under circumstances different from the requirements of the code, such dismissal or non-suit must be deemed and held to be a judgment upon the merits, and, hence, a bar to any future action for the same cause. In other words, that there cannot be such a thing as an irregular judgment of nonsuit or dismissal, but that a judgment of nonsuit or dismissal, not authorized by the code, must be construed to have the effect of a judgment upon the merits. In short, that a bad judgment of nonsuit is a good judgment upon the merits.
The construction contended for is altogether unwarranted. Chapter 10 does not declare that judgments other than the five kinds of nonsuit or dismissal mentioned shall be deemed or held to be judgments upon the merits. The provision is, that in every ease other than the five kinds mentioned, “judgments shall be rendered upon the merits.” But is it not possible that the court might not always observe this requirement of the code ? If the court should render a judgment of dismissal or nonsuit in disregard of such requirement, the judgment would be a wrong to the plaintiff. Would it remedy or mitigate the wrong to give such judgment of dismissal or non-suit the force and effect of a judgment upon the merits ? On the contrary, such treatment would greatly aggravate plaintiff’s injury by making it practically irreparable. What, then. [86]*86is there to justify the construction contended for ? The plain, unambiguous words of the statute do not require it; justice and equity forbid it. It is said in logic that two negatives are equivalent to an affirmative; but has it ever been demonstrated that two wrongs make a right ?
The purpose of chapter 10 was to prescribe the ■ procedure by which a party having certain rights might pursue his remedy. Keeping such purpose in view, it is clear that the chapter does not extend or enlarge, and was not intended to extend or enlarge, directly or indirectly, the powers and privileges of attorneys in respect to the management of their clients’ causes. Since, therefore, the court in the former suit did not render a judgment upon the merits, the judgment of dismissal cannot be construed to have such effect solely upon the ground that it was a dismissal in a case other than the five cases mentioned in chapter 10.
Our conclusions are that the judgment of dismissal was a final judgment and put an end to plaintiff’s action, but that it was not a judgment upon the merits, and so did not put an end to his cause of action. He was, therefore, at liberty to commence another action for the same cause. It appearing that the district court committed no error prejudicial to the rights of defendant, its findings upon the issues and evidence as presented at the trial were right and must be upheld. Its judgment is accordingly affirmed.
Affirmed.