Hiller v. Landis , 44 Iowa 223 ( 1876 )

Adams, J.

Section 213 of the Code provides that “an attorney and counselor has power to bind his client to any agreement in respect to any proceeding within the scope of proper duties and powers, but no evidence of any such agreement is receivable, except the statement of the attorney himself, 'his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court.”

i. attorney: of: practice, In this case, there was an entry made upon the records, but not until a year, after the making of the alleged agreement, and not until a dispute had arisen as to whether suoh agreement was in faot made. The question arises, whether an entry so made was sufficient to establish the alleged agreement.

In consideration of the great importance of attorneys’ agreements governing niatters of litigation, and the uncertainty of human memory after strife is moved, the legislature saw fit to provide that attorneys’ agreements should not be shown by testimony or affidavits. It is claimed, however, in substance, that, while testimony, or affidavits, are not sufficient to justify a court in finding that a disputed agreement was made, they may be sufficient to justify the court in making a record of the agreement, and that the record so made will be sufficient to establish the agreement. But, to our mind, a record of an alleged agreement, made after the agreement is disputed, and wholly upon the strength of testimony or affidavits, does not constitute any stronger evidence than the testimony or affidavits themselves. The reason why a record properly made constitutes better evidence than testimony or affidavits is that, in theory at least, the record is a contemporaneous reduction of the agreement to writing, and is read over in the hearing of, and assented to by, counsel.

Again: Attorneys in full practice do not always find it possible to remember the terms of all the agreements made by them, relative to the conduct of their cases. The law, in its tenderness, does not require them to remember them. It provides that, if they do not remember them, they may rely upon such agreements as are signed and filed, or such as are entered of record by the court. Indeed, without such provision, it is plain to see, the rights of suitors would oftentimes be placed in great jeopardy. Nor is any hardship imposed by precluding a party from establishing an attorney’s agreement by a record made after the agreement is disputed, and upon the strength of testimony or affidavits. Whoever intends to rely upon a record to establish an attorney’s agreement, should see to it that it is made in such a way as to have the proper force and effect of a record for that purpose.

As the District Court had no power to enter a decree in vacation as of. a previous term, except by agreement of parties, and as no such agreement is properly established, it follows that the plaintiff’s motion should have been sustained and the defendant’s overruled. -r,

Reversed.