The judgment and’ order should be affirmed, with costs, úníess the defendant elects to serve a supplemental answer and have a. new trial upon the conditions hereinafter provided, in which case the judgment; arid order should be vacated and set aside and a new trial granted. ■ '
The action was brought to recover damages for personal injuries; alleged to have b'een caused by the negligence of the defendant. The injuries were received in an accident upon defendant’s street railway, while plaintiff was a passenger, October 29, 1903, They •were quite severe and the verdict rendered by the jury for $7,500 was not an excessive one.
The action was commenced November 4, and. the answer served November 24,' 1903. The trial of the case was begun April 14, 1904. Two. days prior thereto and on April' twelfth, defendant’s claim agent, Barnes, went to plaintiff without the knowledge of plaintiff’s attorneys and made -a settlement' of .the case, andhe left with the plaintiff $500 in money. He procured him to sign three papers; one, a release and discharge of the cause of action in consideration of $500 paid at the time, and of the further sum of $2,000, and a doc.-tor’s bill of $200 to be paid -thereafter. This paper was acknowledged by plaintiff. A second paper, a receipt for the $500, and the third paper, a stipulation’ of discontinuance of the action without costs, providing that an order might be entered .thereon on the application of either party Without notice. This stipulation was. also signed, for defendant -by Connette, its ■ vice-president. Two days later, when the case was moved for trial, no objection to proceeding was made by defendant’s attorneys who were present. A jui;y was called and the trial was entered, upon. Some concession as to the facts was made and then defendant’s attorneys presented to the court the stipulation of discontinuance and asked for an order -there*583under. That was the first the plaintiff’s attorneys had heard of the alleged settlement. The plaintiff was not in court, and his attorneys were not aware that any fraud had been practiced upon him in the matter. They objected to any ordef being, granted and to any proof of the alleged settlement under the defendant’s answer, and claimed the right to continue the action to enforce their lien for costs. The defendant’s attorneys stated that the defendant would pay whatever costs plaintiff’s attorneys were entitled to. Thereupon the trial was adjourned until the next morning, April fifteenth. When the case was called in the morning the attorneys for the plaintiff had communicated with their client, and then claimed that the alleged settlement and the papers had been procured by fraud practiced upon the plaintiff by defendant’s claim agent and a minister, and that the release and stipulation were invalid by reason of such fraud, and they insisted upon proceeding with the trial regardless of the alleged settlement. The defendant’s attorneys insisted upon an order of discontinuance of the action under the stipulation and again stated that the defendant stood ready to pay any costs to which the plaintiff’s attorneys were entitled. Considerable talk was indulged in between the court and the respective attorneys, and the court held that if the settlement was honest as to the plaintiff, the lien of the attorneys was transferred to the fund agreed to be paid to plaintiff, but if the honesty of the settlement was attacked the defendant would have to amend its answer setting it up and then the question could be tried before the jury, and that unless the defendant desired to move to put the cause over for the purpose of securing an amendment of the pleadings the trial would have to go on ; that the question of settlement or fraud could not be tried under the pleadings as they then were.
The defendant’s attorneys did not ask that any amendment be made or that any postponement of the trial be granted' to enable them to procure such an amendment. The case was thereupon opened by plaintiff’s attorney and the taking of evidence was proceeded with. The plaintiff gave evidence, and, in answer to questions by his own counsel, stated that he signed the stipulation that same week, and thereupon defendant’s attorneys offered the stipulation in evidence, and asked if the $500 was paid at the time. Objection was made that the stipulation and evidence *584were incompetent and inadmissible under the pleadings, and the objection was sustained and exception taken by defendant’s attorneys. Other witnesses were examined. The defendant’s attorneys remained in the case and-objected to questions asked by plaintiff’s attorneys,, and moved to strike out evidence taken. Noney . of plaintiff’s witnesses were.cross-examined excepting the plaintiff, and lie only as to the. alleged settlement. After the other, evi- '• dence had been taken plaintiff was recalled by defendant’s attor- , neys, for cross-examination, and was asked with reference to the settlement and execution of the papers^ and the attorneys stated they offered this evidence -solely upon, the question of 'the discontinuance and not upon the subject of release or defense,'but. it was-excluded under the objection by plaintiff’s attorneys that it was incompetent and inadmissible under the pleadings. ■ After the. plaintiff. rested, defendant’s attorneys protested against the continuance of the trial on the ground that it had been discontinued', and called attention to the..statement by plaintiff, in answer to his own attorneys that he signed the stipulation, and asked the court to -hold ' that the action had been discontinued and arrest the tr-iál, and to grant an order under the stipulation. ' They also moved for a dismissal of the coitiplaint' on the ground that no cause of action had been established,' and the action had been discontinued before tfie trial Avas begun, all of which was denied and an exception taken by defendant’s attorneys. The defendant then put the claim agent, •' Barnes, on the stand as a witness and proved by him without objec- ■ tion the signing.of -the stipulation by plaintiff and defendant’s yice- •' president, April 12, 1904, and the -signing of the release at'the same time, and offered to prove the payment of the $500 at that time, and offered in evidence the stipulation and release. This evidence was Objected to as incompetent and inadmissible under the pleadings, and was excluded with exception to defendant. •
The defendant’s attorneys also called the minister who. was with the claim agent when the alleged, settlement was made, and proved by him' the same facts, .and made the same offers to. prove as in the ■ .cáse of. the claim agent, and the same, objections were taken and rulings made and exceptipns taken. The defendant’s attorneys then tendered plaintiff’s, attorneys $1,500 in gold for their-costs or dis^ charge of their.lien therefor, upon the settlement, which was refused *585on the ground that no valid settlement had been made, and plaintiff’s attorneys refused to state whether they claimed they were entitled to a larger amount of costs than that tendered. The defendant’s attorneys then again asked for an order under the stipulation, which was refused, and objected to the trial proceeding, offered the stipulation in evidence, stated they could not proceed with trial because of their reliance on the stipulation as discontinuing the action, and the court ruled all these things adversely to defendant under objection and exception as before.
The case was summed up by plaintiff’s attorneys, defendant’s attorneys declining to address the jury. The court charged the jury; at the close of the charge defendant’s attorneys excepted to the submission of any questions to the jury, and requested the court to charge as to the right of plaintiff to settle the action, which was refused on the ground that there was no question as to a settlement before the jury. Exceptions were taken to the refusal by the defendant’s attorneys. The jury rendered the verdict in question.
The foregoing facts with reference to the occurrences upon the trial appear from the case and exceptions settled and ordered tiled by the court.
Three days later, and on April eighteenth, there was presented to the justice who presided at the trial the stipulation, the release and the affidavits of defendant’s vice-president, Connette, its claim agent, Barnes, and its attorney, Gannon, and upon them an order was granted requiring the plaintiff and his attorneys to show cause the •next day, April nineteenth, why the verdict so rendered should not be set aside on the ground that the action was settled and discontinued before the trial commenced, and why an order of "discontinuance should not be granted upon payment to plaintiff’s attorneys of their costs, disbursements and compensation to which they were entitled upon, the basis of the settlement. These affidavits were on the subject of the settlement and what occurred ón the trial. When the matter came on the next day, April nineteenth, the plaintiff’s attorneys tendered back the $500 received by plaintiff at the time of the alleged settlement which was refused. They also stated they would credit the $500 on any execution issued on the judgment. They then presented in opposition to the motion on the *586order to show cause the affidavits- of' plaintiff; his wife and his attorney Sargent. The defendant’s attorneys objected to the reception of these affidavits (which sought to show the invalidity of the ' settlement, release and stipulation by reason of fraud practiced upon the plaintiff), on the ground that the settlement and papers could not be attacked or set - aside on that motion ; that no application having been made to set them aside before the verdict- was rendered and hot having' been made before the verdict, could not affect defendant’s ■ right to have the verdict set aside. (And this objection was put -into the order appealed from.) The court s'aid : “ The motion must be denied. I see no reason to change my views, as expressed oh the trial.” The defendant’s attorneys also made, a motion to set aside the verdict upon the record and proceedings of . the trial and; "what occurred prior to the time, taken by the stenographer, which was denied with exception to defendant.
■, Defendant’s attorneys asked for a stay of thirty days and the ' 1 usual time to make a .case and exceptions. The court so ordered; the-plaintiff to tax costs and enter judgment, and stayed all further proceedings. After all this had occurred plaintiff’s, attorneys asked leave to file tlieir .affidavits in opposition to the application, which was granted. Then defendant’s attorneys repeated their objections ■ to' the reception .of plaintiff’s affidavits already made, and added that they desired and requested the. privilege, if they should elect, of filing answering affidavits of the claim agent and minister. This ,¡request was' denied with exception. The ofdey appealed from recited the request by defendant to be permitted to file,answering affidavits and the refusal by the court to grant such request.
The affidavits filed by plaintiff’s attorneys were sufficient to authorize the finding that the settlement and papers were invalid by reason of the fraud practiced upon the plaintiff by the claim agent and minister.
We have thus carefully and’ in detail stated all the facts bearing upon the questions involved' on this - appeal as to the alleged-settle- ~ 'merit and. discontinuance of the action. There is no question involved as to the right of the attorneys to c'ontinue the. trial' for the establishment and enforcement of their lien for compensation under, section 66 of the Code of Civil Procedure. When the question of a settlement first arose at the trial, the plaintiff was not present and *587his attorneys were not aware that any fraud had been practiced upon him. All they could then do was to insist upon their right to' continue the trial for their own benefit and the enforcement of their lien. But such right was disposed of by the offer of the defendant to pay whatever costs and compensation the plaintiff’s attorneys were entitled to, and the tender of $1,500 for that purpose with a request that the plaintiff’s attorneys state what if anything 'they claimed beyond that amount. Under those circumstances there was full power in the court by itself or the aid of a referee to determine the amount the plaintiff’s attorneys were entitled to under section 66 of the Code of Civil Procedure, and then the settlement would be enforced and the case ended. But when the plaintiff saw his attorneys he disclosed the fraud practiced upon him, as he alleged, and froin that time on the question was, and still is, one merely between the parties and not between defendant and plaintiff’s attorneys.- So that the attorneys’ rights are not here for consideration, but the plaintiff’s rights only. «The settlement was made on the twelfth of April. The trial began the fourteenth of April, and then the trouble.began. The defendant had a stipulation signed by the plaintiff without the knowledge or consent of his attorneys. If the stipulation had been signed by the attorneys for plaintiff the order discontinuing could have been entered as of course, and the action would have been at an end only, to be revived by some action on the part of the plaintiff, and such relief might have been secured by motion or action alleging the fraud. In either event the court would have exercised its equity powers, and no right of trial by jury would have existed. It is, however, expressly provided by the Code of Civil Procedure (§ 55): “If a party has an attorney in thé action he cannot appear to act in person where an attorney may appear or act either by special provision of law or by the course and practice nf the court.” The stipulation signed by the plaintiff himself could only be made effectual by an application to the court on notice to the- attorney, and then the action would not be discontinued .merely because the plaintiff had said in his stipulation it might be, but only when the defendant would have a right to such discontinuance regardless of any stipulation. In other words, the stipulation itself would afford no ground for the discontinuance at all. The most that can be said is that on such application the settlement *588might be alleged, and if, though attacked for fraud, it was found to have been honestly and fairly made, the court might so determine and order the discontinuance.
v It might still be asserted with some reason that, the court Would have no power to settle the question of an honest settlement on motion without plaintiff’s consent, as he would then be deprived of the right of trial by a jury of that question. This question did not arise before the trial or verdict here, independently of what took place on the trial and as a part thereof. The defendant had made this settlement -two days before the trial began, and concealed the same from plaintiff’s attorneys. When the trial was called defendant’s attorneys made no objection to the trial proceeding, and a jury was called and trial was commenced. And then, first, the stipulation was produced and offered in evidence, and the court was asked for an order in accordance therewith, discontinuing the.action. It was not admissible as evidence in the case under the pleadings, and the court so stated and suggested a supplemental answer, setting up the settlement and a postponement of the trial, if necessary, to , enable that to be done. The defendant’s attorneys did not see fit to take, that course, but persisted in- their position through the whole trial, have ever since and still do.
So. far, therefore, as the trial itself was concerned, the settlement papers were incompetent and inadmissible, as the court held there was no such issue in the case and none for the juiy, and the verdict could not be affected thereby.
The defendant’s' attorneys may have acted in good faith in remaining in court and taking part in the trial after this ruling by the court, and in keeping this settlement matter before the jury, but it would seem that the only object they could haVe had was to so . affect the jury as to reduce the amount of the verdict. They had raised the question early in the trial and had taken the ruling of the court and interposed' an exception to such ruling, and might then have safely taken up their' papers and quietly departed, but they kept up. their opposition to the very end of the trial, taking exceptions to the charge and making requests to charge.
The position they really assumed and adhered to" was, not that they had a right to try this issue in the action under the pleadings and'without a supplemental answer setting up the settlement, but *589that the trial could not proceed at all; that the case was ended when they presented the stipulation and aslced for the order. This was not done until after the trial had commenced. No notice of the application or affidavits with reference to the settlement had been served, The plaintiff’s attorneys were not bound to appear upon the motion and answer it merely because they happened to be in court on other business, and the court could not, under those circumstances, entertain the motion without notice and in the. absence of the consent of the attorneys.
It is quite apparent, therefore, that no error was committed by the court, in proceeding with the trial or refusing to hear any motion for discontinuance, or make any order therefor down to the time the verdict was rendered. After the verdict was rendered a motion was regularly made and properly brought on under the order to show cause why the verdict should not be set aside and an order of discontinuance be granted by reason of the alleged settlement upon payment of the compensation of plaintifE’s attorneys by defendant. And the only question remaining is whether this motion was properly disposed of. The decision was not made upon the merits, that is, by reason of any decision thac the settlement was procured by fraud and, therefore, invalid. That question "was not passed upon, as we have already stated from the stenographer’s minutes of the presentation and decision of the motion. It was decided by reference to what the court had held on the trial.'
Though the plaintiff’s affidavits had been presented and objected to the court had paid no attention to their contents, and it was after the decision had been made that the plaintiff’s attorneys asked leave to file the affidavits. This was granted, the defendant’s attorneys again objecting to the same. They had no affidavits and only asked leave to prepare and file some, if they desired. This was refused. The court had no idea of considering or passing upon the question of fact. If it had, it would undoubtedly have permitted the answering affidavits to be filed, and would then have ordered a reference and permitted evidence to be taken and reported before deciding the. question.
The position of the court was that the proper way to settle this question was by a supplemental answer and the trial of the question before a jury, and that it was too late to do that after verdict. *590' The position of defendant’s attorneys, taken on the hearing of the motion ahd.reeited in' the order, was that it was too late after verdict to litigate the question as to the validity or invalidity of the settlement. That was -the ground of-their objection to the filing of plaintiff’s affidavits showing the fraud. So that both sides were in the position of denying the right tó try the question' of the validity or invalidity, of the settlement after the verdict. The defendant’s attorneys claimed that the settlement.shonld be enforced and eouldnot be contested, while the plaintiff’s attorneys claimed that the verdict having been rendered, it could not be disturbed by any alleged settlement. The court took this latter view,, and, therefore, denied the motion to set aside the verdict. It seems to us the defendant was not then entitled as a matter of right to litigate the question. As á matter of favor the trial court .-might have set aside the verdict and permitted defendant to serve a supplemental answer as it suggested during the trial it might do, but the" attorneys for defendant had so conducted themselves that such favor was refused. The attorneys evidently took their chances-of securing- a "small verdict, but they failed in it and then even asked for no favor, but insisted upon, their right to have the verdict sdt aside.
We might- well affirm the judgment and order, but a majority of the -court are of the opinion that the defendant should still have an opportunity to try the question as to the settlement, and, therefore, as a favor to defendant, it may have the order and judgment vacated, the verdict set aside and the right to serve a supplemental answer, and have a new trial upon the payment of all costs in the-action since service of the original answer, including costs of' this appe'al. ; ■
McLennan, P. J., and Stover, J., concurred; dissenting opinion by Spring, J., for absolute reversal and the granting of a new trial, in which Hisoook, J., concurred in separate memorandum. (