Kissick v. Hunter
Kissick v. Hunter
Opinion of the Court
0 m S ion by
The sale could not be held void for want of apparent authority in the sheriff to sell under the fi. fa. because the record discloses a waiver of inquisition and extension, duly indorsed by the prothonotary on the writ, but as the waiver is by attorney the substantial question in the case is whether such a waiver is valid. On this point the case stated is not as exact as it should be. Its language is, “said defendants, by John G. McConnell, their attorney, by writing filed, .... waived the right of inquisition and extension,” etc. If we should hold the present parties to the literal wording of the case stated there would be no question at all, for it avers a waiver by the defendants in
The acts which an attorney may do by virtue of his retainer are readily distinguishable into two classes, first, those in which his authority is absolute and his action binding on the client without regard to the latter’s consent in fact, and secondly, those in which he is presumed to be acting in accordance with his instructions, and which are therefore prima facie valid, but which the client may nevertheless disaffirm. Of the first class are all the steps in the regular progress of litigation, including even the giving up of technical, though substantial, advantages, such as a nonsuit: Reinholdt v. Alberti, 1 Binn. 469. The second class is not so capable of definition, but, in general, it embraces all such acts as are customary for attorneys to do, even though collateral to the technical course of procedure, and which do not involve the sacrifice of the cause of action. It is frequently said that the implied authority of the attorney does not extend beyond judgment, but this is too strong a statement. No doubt the chief part of the authority of the retainer ordinarily ends with judgment, but not always. Thus it has been often held that the plaintiff’s attorney may collect the judgment, and a payment to him without execution, even long after judgment, is a good payment to discharge the debtor: Reinholdt v. Alberti, 1 Binn., supra; Lynch v. Com., 16 S. & R. 368; McDonald v. Todd, 1 Grant, 17. The office of a general retainer is to authorize the attorney to take care of the interests of his client in the litigation, pending or imminent, and in so doing to take all the steps necessary, or only usual and proper, to that end. In a suit for a debt, therefore, the plaintiff’s attorney may not only recover a judgment, but may go on and collect it by execution or otherwise, but he may not accept satisfaction in anything but money. The courts have drawn the line here, because money is the practical object of the suit, and the client’s interest authorizes the obtaining of it by any of the ordinary means of litigation, but not the satisfaction or release of the judgment except for money: Whitesell v. Peck, 165 Pa. 571.
In the present case we are relieved from the consideration of the question of what is a reasonable time, so much discussed in Wray v. Miller, 20 Pa. 111; Spragg v. Shriver, 25 Pa. 284, and the somewhat conflicting cases which have criticised, limited or followed them. The stringency of the rule announced in Spragg
Judgment reversed and record remitted with instructions to-enter judgment for the plaintiff on the case stated.
Reference
- Full Case Name
- Maria Kissick v. Albert N. Hunter
- Cited By
- 8 cases
- Status
- Published
- Syllabus
- Attorneys at law—Power of—Power to waive inquisition—Laches—Presumption. When an attorney at law, who has been acting for a defendant up to the obtaining of judgment on which execution has been promptly issued, files a waiver of inquisition, it is to be presumed that he is acting under the authority of his client, and if the client desires to disavow the action of his attorney, he must do so within a reasonable time. The presumption of authority becomes conclusive when the land is sold under the fi. fa., the plaintiff in the writ becomes the purchaser, and, lor a period of more than sixteen years, no movement is made by the defendant in the writ to disavow. Attorney at law—His authority and presumption of authority. The office of a general retainer is to authorize an attorney to take care of the interests of his client in litigation, pending or imminent, and in so doing to take all the steps necessary, usual and proper to that end, to wit: those in which his authority is absolute, without regard to the client’s consent in fact, such as the steps in the regular progress of litigation ; and, secondly, those which are so far customary that authority will be presumed, but which may nevertheless be disaffirmed by the ■ client. The defendant’s attorney may agree to an amicable action, and may confess judgment.