Fowlkes v. Ingraham

DOOLING, J.

Respondent (plaintiff below) moves to dismiss the appeal. The action was one against the administratrix of á decedent’s estate for $3,835. The case was tried to a jury which brought in a verdict for plaintiff for $1,500. After the jury was discharged and while the attorneys for both parties were still in the courtroom both attorneys stated that so far as they were concerned the case was finished. Four diamond rings had been introduced into evidence and the trial judge stated to counsel for both parties that since they had both expressed the opinion that nothing further was to be done in the case it might be well for the parties to arrange for the withdrawal of the rings so that the courtroom clerk would be relieved of the responsibility for their care. The judge further stated that he would make an order for the withdrawal of the rings “if counsel for plaintiff and defendant were willing to stipulate in open court to waive the right to move for a new trial in said action and waive the right to appeal in said action.” Thereupon, counsel for both parties stipulated orally in open court to waive the right to move for a new trial and to waive the right to appeal and, by direction of the court, this stipulation was entered in the minutes of the court. The rings were thereupon delivered to counsel for the plaintiff. The defendant and appellant administratrix was not present in court when the stipulation was made and was not consulted about it.

The stipulation was made by the attorneys in open court and entered in the minutes in compliance with the requirements of section 283 (1) of the Code of Civil Procedure. The only question presented is whether an attorney has the implied authority to bind his client by a stipulation waiving the right of appeal.

It is settled that section 283, Code of Civil Procedure, does not enlarge or abridge the authority of an attorney, but only prescribes the manner of its exercise.

(Redsted

v.

Weiss,

71 Cal.App.2d 660 and cases cited at p. 663 [163 P.2d 105].) The general authority of the attorney vests him “with complete charge and supervision of the procedure to

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