STATE EX REL. PERSONAL FINANCE COMPANY
v.
MILES W. LEWIS, JUDGE OF THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, AND ALICE M. BUNTING
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The Florida Supreme Court held that an attorney cannot bind a client to dismiss a case on the merits without the client's consent, even through a praecipe for dismissal. The court granted prohibition to prevent enforcement of a dismissal order that was entered without the plaintiff's knowledge or authorization.
The court held that an attorney cannot bind a client to dismiss a case on the merits without the client's consent. While attorneys may bind clients in procedural matters, dismissal affects the merits and requires client authorization. The circuit judge properly struck the praecipe and nunc pro tunc dismissal order.
“It is quite true that in. matters of procedure or praecipe which affect solely the conduct of a cause, an attorney may bind his client but this -is hot the rule as affecting the merits.”
Establishes the distinction between procedural matters where attorneys have binding authority versus substantive matters affecting the merits requiring client consent.
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Join FLexlaw to unlock all legal intelligenceAlice M. Bunting sued Personal Finance Company in June 1930. The case remained pending with a demurrer to the amended declaration as of July 1931. In …
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Alice M. Bunting, joined by her husband, Carlos A. Bunting, instituted a common-law action against Personal Finance Company in June, 1930. In July, 1931, the cause stood on the docket in the shape of a demurrer to plaintiff’s amended declaration. No further steps were taken until September 3, 1934, at which time plaintiff’s counsel filed a praecipe for dismissal which appears not to have been entered or docketed. On July 23, 1935, a deputy in the clerk’s office entered an order of dismissal nunc pro tunc as of September 3, 1934.
On July 25, 1935, Alice M. Bunting moved to withdraw the praecipe for dismissal and to reopen the cause on the ground that it was filed without her authority and against her wishes. In March, 1936, the circuit judge entered an order striking the praecipe and declaring the mine pro tunc order of dismissal null and void. Rehearing was denied in May, 1938. The pleadings were noted for argument and relator filed his suggestion for prohibition in this Court. A rule nisi was issued and the cause now stands for disposition on the motion to quash. Relator contends that the motion to quash should be denied because the cause was to all intents and purposes dismissed when counsel for respondent on September 3, 1934, filed a praecipe for dismissal and that two terms of the court having intervened, the circuit judge was without power to reinstate it.
*88. We do ,not think there is any merit in this contention. It is quite true that in. matters of procedure or praecipe which affect solely the conduct of a cause, an attorney may bind his client but this -is hot the rule as affecting the merits. The question of. dismissal is one that goes to the merits and cannot be effectively done without the consent of the client.
In the case at bar, relator asserts that the, praecipe and the nunc pro Pune order for dismissal were entered without her knowledge or consent. They were accordingly without effect and were properly stricken. The mere fact of filing a praecipe for dismissal does not accomplish that purpose until the order of dismissal is properly entered.
The motion to quash is-therefore granted.
It is so ordered.
Whitfield, P. J., and Brown and Chapman, J. J., con- > cur,
Terrell, C. J., concurs in opinion and judgment.'
Justices Buford and Ti-iomas not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court.
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Lipsig v. Zahid A. Ramlawi, 760 So. 2d 170 (Fla. 3d DCA 2000)…in Florida has the actual and apparent authority to speak and to act for his client only in those matters necessary or incidental to the accomplishment of the purpose of the lawyer’s retention. See, e.g., State ex rel. Personal Finance Co. v. Lewis, 140 Fla. 86, 191 So. 295, 296 (1939) (reasoning that “... in matters of procedure or practice which affect solely the conduct of a cause, an attorney may bind his client ... [.]”); Johnson v. Estate of Fraedrich, 472 So. 2d 1266, 1268 (Fla. 1st DCA 1985) (holdi…
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Love v. Hannah, 72 So. 2d 39 (Fla. 1954)…torney realized the legal effect of the alleged admission when it was made. Furthermore, the power of an attorney to make such an admission which would effectively bind his principal is very doubtful. See State ex rel. Personal Finance Co. v. Lewis, 140 Fla. 86, 88, 191 So. 295, 296, where we said: “ * * * It is quite true that in matters of procedure or practice which affect solely the conduct of a cause, an attorney may bind his client but this is not the rule as affecting the merits. The question of di…
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Palm Beach Royal Hotel, Inc. v. Breese, 154 So. 2d 698 (Fla. 2d DCA 1963)…e usual terms of employment of an attorney by a client to represent him in a litigated cause do not authorize the attorney to stipulate for the entry of a final decree, as was done in the case at bar. See State ex rel. Personal Finance Co. v. Lewis, 140 Fla. 86, 191 So. 295, and Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 37 S.Ct. 287, 61 L.Ed. 722, supra.” In addition to the general theory of law as is announced in the City of Lakeland case, supra, our research has found several cases from other…
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