Dolloff v. Curran , 59 Wis. 332 ( 1884 )

Cassoday, J.

It appears that the plaintiff settled and signed a stipulation discontinuing the action, without consulting her counsel, and against their wish and protest. Whether she consulted her attorney of record does not appear. Just what amount she received in consideration of the settlement is not shown, except that she stated to her counsel that it was much' smaller than it should have been. Whether any fraud, duress, or undue influence was brought to bear upon the plaintiff to induce her to make the settlement and sign the stipulation does not appear. The only intimation we have in that direction is that the plaintiff stated that she had made the settlement and signed the stipulation after repeated solicitations and urgent requests on the part of her husband. There is nothing from which it can be inferred that her attorney of record is dissatisfied with the settlement or is desirous of continuing the action. There is nothing to indicate that the plaintiff is dissatisfied with the settlement made, except that she has stated that she ought to have received more. There is nothing to indicate that she desires to set aside the settlement or continue the action. There is nothing to indicate that her counsel have any pending lien for services or pecuniary interest in the continuance of the suit. They are undoubtedly, as such counsel, displeased with the action of the plaintiff in settling and discontinuing the suit for an amount much smaller than she ought to have received, and have seemingly done all that they could to prevent such settlement, and then, after it was made, to restore to her what they considered as her legal rights; but their advice has been disregarded, and their efforts in her behalf made unavailing by the non-concurrence of the plaintiff. The plaintiff makes no affidavit and seeks no relief from her settlement and stipulation for discontinuance. The case is clearly distinguishable from Bussian v. M., L. S. & W. R’y Co., 56 Wis., 325.

In this state a married woman, in possession of her mental faculties, has the right to sue and be sued respecting her separate property. Since she may bring such action, she certainly has the right to settle and discontinue the same. This right, of course, may be temporarily suspended by the intervening rights of attorneys and others, but here there is a failure to show any such intervention. Certainly, counsel would not be authorized to commence a suit in the name of a client, and against the protest of such client, merely because it would result in a benefit to the client. Neither can they prevent the discontinuance of such action merely because in their judgment such discontinuance would be detrimental to the rights of such client. It is the action of the party, not of the counsel. The party is the principal, and counsel are not to dictate but simply to aid in settling and discontinuing actions. Ye must therefore hold that in the absence of any intervening rights, or of any fraud, duress, or undue influence, a married woman may, especially when acting by the advice of her husband, settle and discontinue a suit in her own favor without the presence of her attorney or counsel, and against the wish and protest of such counsel; and a settlement and discontinuance so made should be enforced by the courts. This view is in harmony with the cases in this court cited in the briefs of counsel.

By the Gourt.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.