Kilmer v. Gallaher

84 N.W. 697, 112 Iowa 583

• Court: Supreme Court of Iowa
• Decided: December 22, 1900
• Status: Published

Opinion

Granger, O. J.

It is an undisputed fact that the attorney for defendant agreed to a settlement of the case and a judgment against his client, without his knowledge or consent, and he was an attorney under a general employment. In Rhutasel v. Rule, 97 Iowa, 20, we cited and quoted from Ohlquest v. Farwell, 71 Iowa, 231, and held that an attorney under a general employment had no authority to consent to-judgment against his client, or waive any cause of action or defense in his case. We approved the same rule in Martin v. Insurance Co., 85 Iowa, 643. The case of Bigler v. Toy, 68 Iowa, 688, holds to the same rule. In that case a compromise was made by an attorney for plaintiff, and this court said: “We are of the opinion that the compromise in no> respect binds the plaintiff, because Irwin had no power or authority to make it.” It is true the case relies upon the rule as to an attorney with a claim for collection, that he cannot receive in payment less than the amount due; but the compromise was in a pending action, and the case seems to hold that the rule as to authority extends to a suit in which the-claim is involved. Appellee refers us to the case of Potter v. Parsons, 14 Iowa, 286. The cases we have cited are all since the Potter Case, and in one of them it is referred to,, and it seems to have been the view of the court that the rule we have stated obtains notwithstanding. The case refers to Holker v. Parker, 7 Cranch, 436 (3 L. Ed. 396). We have examined the case, and, while it -contains the language on which this court then relied as to a compromise by an attorney, the case holds in clear language such a compromise to-be, in itself, void. If void, we do not see how such a compromise can be sustained merely because not so unreasonable in itself as to be exclaimed against by all. A void thing is entirely without force or validity for any purpose. Even as a judgment it is assailable directly or indirectly, and at all times. It has no more validity if reasonable than if unreasonable. In fact, the Holher Case no more than says the-court would be disinclined to disturb a judgment obtained by such a compromise, which was not so unreasonable in itself as to be exclaimed against by all. It is not a positive-statement of a rule of law, but, rather, what might be the-leaning of the court under such a state of facts. In view of all the authorities, we are disposed to adhere to the rule so-often stated, that an attorney, under a general employment, has no authority to consent to a judgment by compromise against his client. With this conclusion, the judgment must, be reversed.