Paakuku v. Komoikehuehu

Allen, C. J.,

dissenting: A judgment was rendered in favor of the plaintiff, and an appeal noted by the attorney for the defendant, who failed to perfect his appeal within the time required by the rules of Court, and the omission was by agreement in writing waived by the plaintiff’s attorney, and in pursuance thereof, the appeal was subsequently perfected, and the case presented and argued before the Appellate Court who have it now under consideration for a final decision. I do not understand now that the attorney for the plaintiff’ requests the Court to dismiss the appeal made in pursuance of his agreement.

The sole question is whether the attorney had a right to waive this omission, and whether an agreement to allow the appeal to be perfected is within his authority.

While an attorney cannot discharge the cause of action, he may elect and control the remedy and the manner of conducting a case.

*648Galliard vs. Smart, 6 Conn., 385. An attorney may bind his clients to waive a notice required by statute, while the suit is pending, Allen vs. Gilmantan. An attorney being in Coui’t ixxstead of his cliexxt, may make any dispositioxx of the suit, and omissions of facts which the party himself could make. 2 Salk., 86; Tidd., 34. This does not subject the parties to axxy unreasonable risks, as they select their own attorney, and if unfaithful, they have a legal remedy against Mm for misconduct. 2 N. H. R., 520.

He may waive objections to evidexxee, make admissions in pleadings, or by parol, and enter non-suit, or default. He caxx execute leases, or confess judgment.

This agreement is part of the record, aixd cannot be evaded or avoided.

Yates vs. Russell, 17 John, 468; 3 Cranch, 297.

The judgment ixx this case was not final, for the party appealed, and instead of submitting the grounds of objections to appeal to the consideration of the Court, the attorney for the plaintiff waived them, and under that agreement the appeal was perfected. I do not regard it as a matter of course, that the appeal would have beexx disallowed. There may be such an effort on the part of the attorney to perfect the appeal within the time as to satisfy the Court that it should be allowed, although the papex’s were not filed at the time with the clerk.

I do not regax’d the rule as inexorable. It is the same as a provision of law that wlxeix process is issued against a party, service shall be made by the marshal or his depx.ty, bxxt it is the constaixt practice to waive it by the attorney, and service is acknowledged by him, and I have not known it called in question.

Attorneys are responsible for a faithful discharge of their duties, and it is not worth while to limit the authority, which they have usually exercised.

In the case of Moulton vs. Bankur, 115 Mass. R., 40, *649Chief Justice Grey says, that an attorney at law has an authority, by virtue of his employment as such, to do in behalf of his client all acts, in or out of Court, necessary or incidental to the prosecution and management of the suit, and which a fleet the remedy only and not the cause of action.

Chief Justice Shaw says, in the case of Davis vs. Sumner, 13 Met., 271, that when an appearance is entered for a party by a regular attorney all parties have a right, prima facie, to regard him as the accredited representative of such party.

It is begging the question to say that the rights of the party were legally established in this ease. They were not legally established while under discussion in the Court. The case was not settled, and there was no final judgment. This is the cause of the error in reasoning.

.It is not denied that he may appeal, or refer a case, to arbitration.

Buckland vs. Canney, 16 Mass., 396. Should this authority as exercised in this ease be denied an attorney, it would be a restriction which by analogy,- would limit his discretion to a very troublesome extent in Court, and he would cease to be, in the language of Chief Justice Shaw, “the representative of his client.”

In the case of Thompson vs. Hatel, 3 Pick., 512, the plaintiff' objected to the filing of a plea on the fifth day of term, because by the rules of the Court of common pleas, no plea in abatement could be filed after tlie fourth day of the term.

Had the plaintiff’s counsel in the case at bar objected to the perfecting of the appeal, he would have done it successfully so far as the case appears, but he deemed it proper to waive the time prescribed by the rules, and I have no doubt that in the case of Hatch vs. Thompson, had the counsel waived the objection to the day of filing the plea, the Court would have taken no notice of it.

I submit with great respect that there is a very great dis*650tinction in the cases cited in the opinion of the Court and the ease at bar. In those cases there was no waiver by the counsel of the appellees — and that is the only question involved.

In this case the question of appeal was still involved at the time of the waiver, and in consequence of it, the appeal was perfected, and the case submitted without objection, to the full Court; and I am of opinion that it is hardly competent for the Court of its own motion after having allowed the appeal by virtue of the waiver of counsel, to resume its consideration at this stage of the case and reverse its proceedings.