Schlitz v. Meyer , 61 Wis. 418 ( 1884 )

Lyorr, J.

On this record there is no doubt of the authority of Miller, Pors & Pors to appear as attorneys for Mrs. Meyer and defend the action. “The authority of an attorney at law who appears in a court of justice on behalf of a party to an action, is to be presumed. He is an officer of the court, and if his authority is denied, the burden of showing that he is unauthorized rests upon the party making the denial.” Thomas v. Steele, 22 Wis. 207 There is nothing in the motion papers tending to show that their appearance in behalf of Mrs. Meyer was unauthorized, or that their authority has ever been revoked.

The motion to vacate and dismiss the garnishee proceedings is the motion of Mrs. Meyer, and the question is whether she did anything while it was pending which estops her to prosecute it. It is said that she admitted the plaintiff’s claim to be just, and endeavored to make provision for the payment of it, but failed. But does that estop her, ipso facto? Her admission would be evidence against her on the trial, but she might avoid the force of it by denying that she made it, or by showing that she made it under a misapprehension of material facts. On an ex parte showing that a defendant had admitted the claim in a suit to be just, would any court strike off the answer, or close against the defendant all right of defense? ¥e think not.

But it is claimed that the facts stated in the affidavits show a settlement of the controversy, so far as Mrs. Meyer could settle it, and that she ought not to be heard further in the action. If there was a valid accord and satisfaction of the claim in suit, that furnishes the best of reasons why not only the garnishee proceedings, but the main action, should have been dismissed, and this whether the proceedings were regular or otherwise. However, the affidavits show at most an accord without satisfaction, which binds neither party.. The plaintiff did not accept the order on Miller in satisfaction of his demand. He only agreed to accept the money which the order called for in satisfaction thereof. Although he may proceed against Miller on the order if he so elects, the plaintiff has done nothing to forfeit his right to prosecute his action against Mrs. Meyer as he may be advised, and she has done nothing which deprives her of the right to interpose any defense thereto she may have, or to attack the validity of the garnishee proceedings therein.

It is scarcely necessary to say that the transactions detailed in the affidavits contain no element of the submission of a controversy to arbitration. Had there been such a submission, it would, like an accord and satisfaction, have worked a discontinuance of the action, including the garnishee proceedings.

The garnishee affidavit was fatally defective, and we think the circuit court properly dismissed the proceedings founded upon it.

By the Court.— Order affirmed.