Leahy v. Stone

115 Ill. App. 138, 1904 Ill. App. LEXIS 282

• Court: Appellate Court of Illinois
• Decided: July 12, 1904
• Docket: Gen. No. 10,349
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The contention of the plaintiff in error is, that notwithstanding the stipulation that this judgment should be final and that no appeal or writ of error should be prosecuted to reverse the same by either party, this writ of error- can be sustained because the stipulation was signed, not by the defendant, but by his attorneys for him, and that attorneys have no implied authority to make such a stipulation.

The certified check of' the defendant was deposited with the clerk in pursuance of the terms of the stipulation. The judgment was vacated and the defendant took part in the second trial and testified in his own behalf at that trial. If he did not authorize his attorneys to sign the stipulation he ratified their act in signing it, took advantage of it, and is as much bound by it as though he himself had signed it.

We are also of the opinion that the attorneys of the defenclant had implied authority to stipulate that the judgment rendered on the second trial should be final and that no appeal or writ of error to reverse the same should be prosecuted. In Wilson v. Spring, 64 Ill. 14, it was said (p. 18): “ It has been repeatedly held that an attorney may admit facts on the trial or in pleading, waive a right of an appeal, review, notice, etc., and confess a judgment.” Talbot v. McGee, 4 Monr. 377; Pike v. Emerson, 5 N. H. 393; Alton v. Gilmanton, 2 N. H. 520. In Pike v. Emerson, supra, it was held that an attorney has implied authority to make such a stipulation. In Meriden Hydro-Carbon Arc Light Co. v. Anderson, 111 Ill. App. 449, we said: “The distinction between acts which an attorney has implied authority from his client to do and those for which he had not such authority, seems to be, between an act collateral to and one directly within the employment and duty of an attorney. ‘ The act of an attorney shall prejudice his master in the principal matter; for if he confess the action without the consent and will of the master, this shall bind the master, but otherwise in.collateral matters.’ 3 Yiner’s Abridgt. 304. ‘An attorney being in court instead of his client or in his ‘ place and turn,5 may make any disposition of 'the suit and any admission of facts which the party himself could make. 1 Salk, 86; Alton v. Gilmanton, 2 N. H. 520.”

The attorneys who signed the stipulation were employed to defend, in the Circuit Court, the suit brought against the defendant. It was to enable them to present his defense that the stipulation was made; it relates to the proceedings in the cause and was filed in the cause. Such a stipulation is a principal, not a collateral matter, and the defendant ivas bound by it.

As the stipulation that no writ of error should be prosecuted to reverse the judgment appears in the record, the defendant may properly move to dismiss the writ of error upon the record. Farwell v. Sturges, 165 Ill. 252, 274.

The writ of error will be dismissed.

Writ of error dismissed.