Holmes v. Rogers

Baldwin, J. delivered the opinion of the Court 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 [200]made 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) :