Loughridge v. Burkhart , 147 Ky. 457 ( 1912 )

Opinion op the Court by

Chief Justice Hobson —

Affirming.

W. J. Loughridge and others brought an action against Moses Burkhart in Harlan Circuit Court to recover one hundred acres of land which he claimed he held under an old title bond. In the Circuit Court there was a judgment in favor of Lougbridge, etc., but on appeal to this court by Burkbart bis title under tbe title bond was upheld, and tbe cause was on December 11, 1906, reversed with directions to tbe Circuit Court to enter a judgment in bis favor. (See Burkbart v. Lougbridge, 124 Ky., 48.) On tbe return of tbe case to tbe Circuit Court judgment was entered at tbe May term, 1907, as therein directed. After, that judgment was entered Lougbridge, etc., tbe plaintiffs in that case, on February 8, 1908, brought a suit in the Harlan Circuit Court against Burkbart to obtain a new trial on tbe ground that tbe judgment bad been obtained by Burkbart by fraud. There was then pending in .the court an action by Burkbart against them to recover damages for timber cut on tbe land in controversy and also an action by Burkbart against T. J. Asher, who was their vendee, to recover damages for timber which be bad cut. Lougbridge, etc., all resided at Lexington. H. E. Ross, who also, resided at Lexington, represented them in all these actions; also Forester and Forester, who were attorneys at Harlan, Kentucky. In June, 1908, Ross and W. H. Henderson, of Lexington, who was one of tbe plaintiffs, were at Harlan for the purpose of taking depositions in tbe action for new trial. A proposition to compromise tbe case was under discussion, and W. H. Henderson, who was sick, said that be bad no authority to agree to a compromise, and left before anything was concluded. After Henderson left, Ross upon bis own responsibility made a compromise of all three actions. Under the compromise agreement all three suits were to be dismissed, at tbe cost of Lougbridge, etc., and they were to pay back to Burkbart $255 which they bad drawn.out of court under tbe judgment which bad been reversed in this court. At tbe following term of the Harlan Circuit Court on June 25, 1908, orders dismissing all three actions were entered pursuant to tbe written agreement. Upon the return of Ross to Lexington, money was sent ‘from Lexington to pay tbe cost and to pay tbe $255 to Burkbart. On September 16, 1911, this suit was. brought by W. J. Lougbridge, etc., to set aside tbe judgment dismissing their action for new trial on tbe ground that tbe compromise agreement was made by their attorney, II. E. Ross, without authority. An answer was filed controverting tbe allegations of the petition, .and on final bearing tbe Circuit Court dismissed it. They appeal.

An attorney has: no authority to compromise bis client’s case by virtue of his employment to represent the client in the action, and a compromise made by an attorney without special authority, may be set aside by the client. ' (Smith v. Dixon, 3 Met., 438.) But the client can not repudiate his attorney’s action, if’ he has acquiesced in his assumption of authority, and in a case like this he must act with reasonable promptness; for Burkhart’s two actions were also dismissed under the compromise, and he was entitled to proceed with his cases if the compromise was not to stand. Boss and his clients all lived at Lexington. Boss does not testify. His clients all testify that they did not pay the money which was sent to Harlan after the agreement was made, and before the orders were entered dismissing the actions. That this money was sent and sent from Lexington is clearly proven, but who sent it is not shown. W. H. Henderson, who was one of the plaintiffs, and who went with Boss to Harlan to attend to the cases, gives this testimony:

Q. “About how long after this suit was dismissed, I mean the suit for a new trial, was it until you found out the order had been entered?

A. “I think it was shortly afterwards. My recollection.

Q. “About how many days?

A. “I don’t recollect.

Q. “How did you find it out?

A. “Just now I don’t recollect just how I received the information.

Q. “Who was representing you in that matter at the time you found it out? •

A. “Messrs.. Forester and H. E. Boss.

Q. “Did Mr. Boss tell you about it?

A. “I don’t recollect.

Q. “Do you remember where you were when you first heard it?

A. “No, sir; I do not.

Q. “Can you give any idea about how long it was after you and Mr. Boss were at Harlan until you found out this suit had been settled?

A. “No, I don’t recall now the time.

Q. “Did you and Mr. Boss return to Lexington together from that trip ?

A. “No, sir; not all the way.

Q. “What part of the way did you travel together?

A. “We took the sleeper at Hagan and came home.

Q. “Did you talk with, him on the way about this matter ?

A. “No, sir.”

It is evident from this that Henderson knew of the compromise about the time it wag made. He was not only one of the plaintiffs but the one who had gone to Harlan to attend to the business. Notice to him was notice to his associates. The suit to set aside the compromise was not entered for over three years after he knew of it. The application came too late. The plaintiffs could not with knowledge that this compromise had been made rest on their oars for three years and then bring an action to1 have the orders set aside and the case restored to the docket. They were required to act promptly. They could not sleep on their rights. The delay in complaining of the attorney’s action was a ratification of his act.

Judgment affirmed.