Summary
holding that "[w]hen a lawyer has appeared in court for a client ..., he alone can act in the matter, the client, until he discharges his attorney and notifies the other side of his having done so, can take no action whatever. Any other rule would be subversive of all orderliness in the conduct of litigation .... Apparently no Pennsylvania case lays down this salutary rule, the reason doubtless being that in the customs among lawyers it has been recognized time out of mind"
Summary of this case from Farrell v. FarrellOpinion
October 5, 1938.
December 5, 1938.
Attorney and client — Conduct of litigation — Attorney of record — Entry of order by client — Invalidity.
1. A party to an action may appear in his own proper person or by attorney, but he cannot do both. [517]
2. When a lawyer has appeared in court for a client and commenced a suit, the client can take no action whatever in the matter until he discharges his attorney and notifies the other side of his having done so. [517]
3. Where an attorney commenced action for his clients and a rule was granted upon him to produce and file his warrant or warrants of attorney for the parties plaintiff with a stay of all proceedings, and some of the clients thereafter and while the stay of proceedings was in effect filed with the prothonotary a præcipe to enter a decree pro confesso for want of an answer, and such decree was entered on behalf of all plaintiffs, it was held that the filing of the præcipe was improper and that the decree should be stricken off. [516-18]
Argued October 5, 1938.
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW and BARNES, JJ.
Appeal, No. 121, March T., 1938, from order of C. P. Allegheny Co., July T., 1935, No. 1168, in case of Agnes Gliwa et al. v. United States Steel Corporation et al. Order striking off decree pro confesso affirmed.
Petition and rule to strike off decree entered pro confesso.
The opinion of the Supreme Court states the facts.
Rule made absolute, before EGAN, DITHRICH and GARDNER, JJ., opinion by EGAN, J. Plaintiffs appealed.
Error assigned, among others, was action of lower court in making absolute the rule.
Asa L. Carter, for appellants.
John J. Heard, with him John C. Bane, Jr., and Reed, Smith, Shaw McClay, for appellees.
This appeal is from an order striking off a decree pro confesso.
May 25, 1935, a rule was granted upon plaintiffs' attorney to produce and file his warrant or warrants of attorney for the one hundred and ninety-two persons joined as parties plaintiff, "all other proceedings in this case to be stayed until such warrant or warrants of attorney shall have been produced and filed as aforesaid."
See Gliwa et al. v. United States Steel Corp. et al., 322 Pa. 225, 185 A. 584.
July 3, 1937, with this stay order in existence, upon a præcipe signed by seven of the one hundred and ninety-two plaintiffs and eleven other persons not parties to the suit, the prothonotary entered a decree pro confesso against defendants for want of an answer. The decree was entered on behalf of all plaintiffs. No warrants of attorney had been filed. No notice was given defendants of the entry of the pro confesso decree. When they discovered it, they presented their petition asking that it be stricken off. The court granted the prayer and from its order we have this appeal.
A number of sound reasons sustaining the court's action might be given. One is so fundamental in legal procedure that it alone need be stated. When a lawyer has appeared in court for a client and commenced a suit, he alone can act in the matter; the client, until he discharges his attorney and notifies the other side of his having done so, can take no action whatever. Any other rule would be subversive of all orderliness in the conduct of litigation and would work to the manifest disadvantage of the opposing party, who is entitled to rely upon the status of the attorney who represents his antagonist, until he has notice that he no longer does so. Apparently no Pennsylvania case lays down this salutary rule, the reason doubtless being that in the customs among lawyers it has been recognized time out of mind. By text writers and in other jurisdictions it has been stated in terms. "An appearance, as a general rule, is made through an attorney, though it is not necessary that it be so made; one may appear in his own proper person. However, one may not appear by his attorney and in person at the same time": 3 Am. Jur., Appearances, Sec. 7. "A party to an action may appear in his own proper person or by attorney, but he cannot do both. If he appears by attorney he must be heard through him, and it is indispensable to the decorum of the Court, and the due and orderly conduct of a cause that such attorney shall have the management and control of the action and his acts go unquestioned by any one except the party whom he represents. So long as he remains attorney of record the Court cannot recognize any other as having the management of the case. . . . While there is an attorney of record, no stipulation as to the conduct or disposal of the action should be entertained by the Court unless the same is signed or assented to by such attorney": Board of Commissioners v. Younger, 29 Cal. 147, 149. "If the party whom he represents at any time becomes dissatisfied, his remedy is pointed out by law — to procure a change or substitution. Until this has been done the client cannot assume control of the case": Crescent Canal Co. v. Montgomery, 124 Cal. 134, 146, 56 P. 797. For other authorities sustaining the rule, see Boca L. R. Co. v. Superior Court of Lassen County, 150 Cal. 153, 88 P. 718; Abernethy v. Burns, 206 N.C. 370, 173 S.E. 899; Electric Utilities Co. v. Smallpage, 31 P.2d 412, 137 Cal.App. 640; De Armond v. Fine, 111 Miss. 737, 72 So. 145; Irvin v. Dwight B. Heard Inv. Co., 35 Ariz. 528, 281 P. 213; Johnson v. Antonopoulos, 213 App. Div. 324, 210 N.Y. S. 589. For additional citation of cases, see 6 C. J. 643, note 6.
Order of the court below striking off the decree pro confesso is affirmed at appellants' cost.