Terry, C. J. concurring.
This is a bill filed to vacate a decree rendered in a case of Edmund Laffan v. The Plaintiff and others, on the 18th July, 1855.
It is not a bill of review technically so called, for it is not brought either for error appearing on the record, or upon the discovery of any new matter. (Story’s Eq. Plea. 450.)
The bill charges that, on the 16th December, 1851, Edmund Laffan was the owner of certain real estate in the city of San Francisco, and that Isaac E. Holmes was his agent and Attorney; that Holmes became, in various ways, the owner of the property, and conveyed it to the plaintiff; that Laffan sued for this property, alleging that Holmes was his agent, and bought in violation of his trust for his own use; that the fact was that Holmes was fully authorized and justified in buying the property, of which he produces proof of letters of Laffan and otherwise; that a decree, a copy of which appears as an exhibit, was *200made in this ease in favor of Laffan; that this decree seems to have been regularly made by the consent of the plaintiffs’ and of the defendants’ Attorneys; that this decree was rendered in consequence of certain written agreements entered into by Laffan in person, and by I E. Holmes, by his Attorney, and by J. G-. Holmes, by his Attorney, but without authority on the part of these agents.
Ho fraud is averred, nor the insolvency of the Attorney, and no sufficient allegation that these Attorneys were not authorized to appear in the case and answer for the defendants. Hor is any charge made of any newly discovered testimony. On the contrary, it seems by the allegations of the bill that the proofs relied upon by the plaintiff were in the possession and knowledge of the Attorneys. Answers setting up the defense were also filed in the case.
We do not consider it at all necessary to go behind the decree to ascertain any facts touching the alleged agreements or the authority to make them.
Attorneys ajipeared in Court and consented to it. In their discretion, they supposed, doubtless, that this was the best they could do for their clients; and we do not conceive ourselves called upon to supervise its exercise. It scarcely needed the multitude of authorities which the learned counsel for the Respondents have cited upon their brief, to show that a decree, fairly entered by consent of the Attorney, is as binding upon his client as a decree entered after the most pertinacious resistance. The judgment of counsel is trusted in the management and conduct of a lawsuit. He must decide, in the absence, at all events, of express instructions, whether or how long he will contest, what points he will take, and what abandon. (5 Johns. Ch. 568 ; 20 Johns. 668.) The rule is thus stated in Gifford v. Thorn et al. (1 Stockton, N. J. 722) :
“ To avoid its (a judgment’s) conclusive operation, the complaint must show that the solicitor had no authority to appear. The presumption is in favor of his authority. Hor is it a material point of inquiry whether the solicitor exceeded his authority or departed from his instructions. If he was solicitor, the party was in Court, and the decree is binding.” To the same effect is a long array of cases cited by the Respondent's counsel. In Suy*201dam, v. Pitcher, (4 Cal. 281,) it is held that the appearance of an Attorney, whether authorized or not, is a good and sufficient appearance to bind the party, unless in cases of fraud or insolvency of the Attorney.
It cannot be pretended with reason that this decree was rendered by mistake. To make this defense availing, the mistake must be an excusable error, unmixed with any fault or negligence on the part of the party, or his Attorney; for the negligence or default of the Attorney in such cases is that of his principal. Here the Attorneys were in full possession of all the materials of the defense, and it is npt pretended that by any practices of the plaintiff they wore prevented from making it available. If we tolerated the principle invoked, it would lead to most serious evils. It would be to the interest of the party that his counsel should mismanage his case; since he could, by not waging his defense, place himself in a better position than if he used all diligence and effort on the trial.
We have not overlooked the statement in the bill which, with much indirectness, makes a qualified denial of the fact in the decree stated, that the parties consented, by their Attorneys, in open Court, to the decree. This qualified denial seems to be based on the fact that L. Blanding was the Attorney of plaintiff, and that he turned over the management of the case to his brother, who appeared in Court without further authority. It is not charged that the first named gentleman did not consent, nor that the acts of his representative were not fully approved by him. It would sometimes be a more convenient than just rule, if an Attorney, by merely getting a professional brother to represent him in a cause, could get all the advantages of a trial if he succeeded, and, if he did not, give his client the right to set aside the proceedings for want of authority in the acting Attorney. If the Attorney assented to the decree, the assent need not be made in open Court by words spoken by the Attorney. It might have as well been made by stipulation out of Court; for it is the fact that is effectual, not the mere mode of its authentication to the Court. If that assent existed at the time of the action of the Court, or the entering of the decree, it is enough. We are not to be understood as holding that the appearance of an Attorney wholly unauthorized, no fraud appearing and no allegation of his *202insolvency, would give the party a right to assail the judgment upon that ground. The cases in our own and other Courts seem to hold that it would not.
It would be a useless consumption of time to consider this case further, for we think it wholly barren of legal merits.
We have looked into the case which the bill has sought to make, and while we are far from imputing to the learned and respectable counsel in the original suit any improper, negligent or unprofessional conduct, it affords us gratification to say that the facts exhibited, and which seem to be sustained by the documentary evidence adduced, though they might not have affected the legal proposition or conclusion in the ease referred to, relieve the defendant, I. E. Holmes, from imputations of professional or moral delinquency, which might be supposed to attach in consequence of a decree against him founded upon the charges of the bill of Laffan. But we see no foundation for the claim of relief set up in this proceeding, and affirm the judgment on the demurrer.
On petition for rehearing, the following opinion was delivered by Baldwin, J J—Tbrry, Terry, C. J. concurring:
This case was argued by Appellant’s counsel at the bar. We declined to hear Respondent’s counsel, under an impression that this bill could not be sustained. A speedy decision was desired by the Administrator, on the ground that this was necessary to the settlement of the affairs of the estate, and such cases we consider privileged. We found on file elaborate briefs on both sides. Since the decision, a long and able printed argument, prepared before our opinion was delivered, has been filed. We have road it attentively, but it has not changed our conclusion. We omitted to notice specifically one or two points taken by the Appellant’s counsel, but they fall within the doctrines laid down in the opinion. Hor did we propose to follow the line of the argument of counsel. It is not our habit to do so. An opinion is not a controversial tract, much less a brief in reply to the counsel against whose views we decide. It is merely a statement of conclusions, and of the principal reasons which have led us to them. If we were to undertake to follow the elaborate arguments on both sides, and then in addition, to give our own views, the ex*203tent of our labors may be estimated by the fact, that in this case, not fewer, probably, than one hundred pages of printed matter have been employed in the argument.
We think that there is nothing in the point that some portion of property of Holmes, never owned by Lañan, or put in controversy in the suit of Lañan and Holmes, was covered by the decree. If the Attorney assented to the decree—this was no error —if the decree was erroneous for this, there was a right of appeal. 'There are several other answers. But we do not propose to go again into the subject.
We are satisfied that the judgment of this Court is right and deny the petition.