7-107 Powers of attorneys. - Nebraska Statutes

7-107. Powers of attorneys.An attorney or counselor has power: (1) To execute, in the name of his client, a bond for an appeal, certiorari, writ of error, or any other paper necessary and proper for the prosecution of a suit already commenced; (2) to bind his client by his agreement in respect to any proceeding within the scope of his proper duties and powers; but no evidence of any such agreement is receivable except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court; (3) to receive money claimed by his client, in an action or proceeding, during the pendency thereof or afterwards, unless he has been previously discharged by his client, and upon payment thereof, and not otherwise, to discharge the claim or acknowledge satisfaction of the judgment. SourceR.S.1866, c. 3, § 7, p. 15; R.S.1913, § 271; C.S.1922, § 266; C.S.1929, § 7-107; R.S.1943, § 7-107. Annotations1. Appearance2. Powers3. Agreements4. Miscellaneous1. AppearanceAfter discharge, an attorney may appear in case as amicus curiae and suggest facts necessary to the protection of minors whose rights have been disregarded. Jones v. Hudson, 93 Neb. 561, 141 N.W. 141 (1913), 44 L.R.A.N.S. 1182 (1913).Where an attorney appears in an action, the presumption is that he was authorized to appear. Ebel v. Stringer, 73 Neb. 249, 102 N.W. 466 (1905).The authority of an attorney to appear will be presumed even though appearance is upon behalf of plaintiff and one defendant. Union P. Ry. Co. v. Vincent, 58 Neb. 171, 78 N.W. 457 (1899).The authority of an attorney who enters an appearance will be presumed to justify him in doing so. Missouri P. Ry. Co. v. Fox, 56 Neb. 746, 77 N.W. 130 (1898).Where judgment is rendered against a party whose appearance is entered by an unauthorized attorney, the presumption of jurisdiction arising from the appearance of the attorney is not conclusive, and in a direct attack on the judgment, the fact that the appearance was unauthorized may be shown. Kaufmann v. Drexel, 56 Neb. 229, 76 N.W. 559 (1898).When an attorney appears in a cause, the presumption is that he has authority and that presumption continues until the want of authority is shown. Vorce v. Page, 28 Neb. 294, 44 N.W. 452 (1889).Unauthorized appearance of attorney may be ratified before judgment. Little v. Giles, 27 Neb. 179, 42 N.W. 1044 (1889).The right of an attorney to enter an appearance for a party can be called in question only by the party himself. Baldwin v. Foss, 14 Neb. 455, 16 N.W. 480 (1883).Although authority will be presumed when an attorney appears for a defendant not served with process, yet if the defendant proves attorney had no authority, his rights cannot be affected by the attorney's acts. Kepley v. Irwin, 14 Neb. 300, 15 N.W. 719 (1883).Unauthorized bringing of action resulting in decree of foreclosure may be repudiated by client. McDowell v. Gregory, 14 Neb. 33, 14 N.W. 899 (1883).Appearance of attorney, who had no authority to waive process or defend the suit, may be explained, and showing made that court pronouncing judgment did not have jurisdiction of the cause or person. Eaton v. Hasty, 6 Neb. 419, 29 Am. R. 365 (1877).2. PowersA lawyer's proper duties and powers, within the meaning of this section, do not include settling a lawsuit without a client's express authority. Luethke v. Suhr, 264 Neb. 505, 650 N.W.2d 220 (2002).An attorney's power to bind his client extends to administrative hearings and proceedings. Brennan v. School Dist. No. 21, 235 Neb. 948, 458 N.W.2d 227 (1990).The waiver of foundation for certain evidence is a matter of trial strategy within the scope of counsel's duty and such action is binding on a defendant who has voluntarily absented himself from the trial. State v. Sayers, 211 Neb. 555, 319 N.W.2d 438 (1982).Attorneys employed by counties could receive money due county under court decree. State ex rel. Heintze v. County of Adams, 162 Neb. 127, 75 N.W.2d 539 (1956).While the relationship of attorney and client exists, the attorney has authority to receive money due his client in an action or proceeding in which the attorney rightly appears, but that authority ceases with the severance of the relationship. Gordon v. Hennings, 89 Neb. 252, 131 N.W. 228 (1911).An attorney may receive and receipt for money due his client in a case in which he is employed, and the act will bind his client, unless the party paying had notice of revocation of the attorney's authority to act. Gordon v. City of Omaha, 77 Neb. 556, 110 N.W. 313 (1906).Attorney cannot bind client by acts in another action in his own behalf. Hamilton Brown Shoe Co. v. Milliken, 62 Neb. 116, 86 N.W. 913 (1901).An attorney cannot, without actual authority, sell and assign his client's judgment. Henry & Coatsworth Co. v. Halter, 58 Neb. 685, 79 N.W. 616 (1899).A debtor is bound to take notice of the authority of an attorney employed to collect a debt, and unless specially authorized by client, the attorney has no authority to accept in payment of debt anything but money, nor to release one of two joint debtors in consideration of the other giving security for the debt. Cram v. Sickel, 51 Neb. 828, 71 N.W. 724 (1897).Attorney employed to collect debt has no power, without express authority, to compromise claim or release a debtor except upon payment of full amount of debt in money. Smith v. Jones, 47 Neb. 108, 66 N.W. 19 (1896).Implied authority of an attorney to bind his client does not authorize him to execute indemnity bond to sheriff when client is readily available. Luce v. Foster, 42 Neb. 818, 60 N.W. 1027 (1894).Attorney has authority to confess judgment for costs in order to have default judgment set aside. Stanton & Co. v. Spence, 22 Neb. 191, 34 N.W. 359 (1887).Attorney cannot compromise judgment and accept payment in a debt owing by the attorney. Hamrick v. Combs, 14 Neb. 381, 15 N.W. 731 (1883).Attorney having notes and mortgage in his possession for collection has authority to receive payment, surrender the notes, and agree to release the mortgage. Ward v. Beals, 14 Neb. 114, 15 N.W. 353 (1883).An attorney, by virtue of his employment to make collections, has no authority to release a surety on a promissory note without payment. Stoll v. Sheldon, 13 Neb. 207, 13 N.W. 201 (1882).Authority to give notice of termination of agency upon behalf of principal is not within the express or implied powers of an attorney, at least before the commencement of action. Tingley v. Parshall, 11 Neb. 443, 9 N.W. 571 (1881).Attorney, by virtue of his general authority, cannot authorize an execution to issue against the property of his client while a supersedeas bond is on file. State Bank of Nebraska v. Green, 8 Neb. 297 (1879).Joint employment of an attorney by principal and surety to defend suit does not give authority to sign a stay bond on behalf of the surety. Anderson v. Hendrickson, 1 Neb. Unof. 610, 95 N.W. 844 (1901).An attorney employed to prosecute action has no authority to dismiss it contrary to the desire and over the objection of the client. Steinkamp v. Gaebel, 1 Neb. Unof. 480, 95 N.W. 684 (1901).3. AgreementsSubsection (2) of this statute does not make an oral contract invalid, but only relates to the character of evidence by which it may be established. Heese Produce Co. v. Lueders, 233 Neb. 12, 443 N.W.2d 278 (1989).Statements of attorney, made out of court, as to existence of oral agreement upon behalf of client, are not admissible in evidence. Oddo v. Fred F. Shields, 144 Neb. 111, 12 N.W.2d 659 (1944).Oral agreements between attorneys, entered into out of court, will not be recognized or considered. Drake v. Ralston, 137 Neb. 72, 288 N.W. 377 (1939).Second subdivision of this section does not make oral agreement invalid, but prescribes character of evidence to prove it and, if proved, without objection, by incompetent evidence, it may be enforced. Anderson v. Walsh, 109 Neb. 759, 192 N.W. 328 (1923).Attorney has no authority to make agreement that purchaser at judicial sale shall pay amount of his bid to a third person instead of to the officer making the sale. Fire Assn. of Philadelphia v. Ruby, 58 Neb. 730, 79 N.W. 723 (1899).Written stipulations of counsel in regard to trial of cause may be set aside in the discretion of the court when their enforcement would result in serious injury to one party and would not be prejudicial to the other party. Keens v. Robertson, 46 Neb. 837, 65 N.W. 897 (1896).Oral agreement of attorney to arbitrate matters in litigation cannot be proved by testimony of person who heard the agreement made. German-American Ins. Co. v. Buckstaff, 38 Neb. 135, 56 N.W. 692 (1893).Written agreements of attorneys, or oral agreements entered into by them in open court, in regard to the disposition of cases, will be enforced, but oral agreements entered into out of court will not be recognized. Rich v. State Nat. Bank of Lincoln, 7 Neb. 201, 29 Am. R. 382 (1878).Agreement as to conduct of suit made in open court and entered on record, binds client. McCann v. McLennan, 3 Neb. 25 (1873).4. MiscellaneousThe State's comments during a juvenile court proceeding are not judicial admissions and do not bind the State to use the same theory in a criminal proceeding. State v. Canady, 263 Neb. 552, 641 N.W.2d 43 (2002).Stipulation of attorneys in injunction suit for later determination of issue of damages was binding. Kuhlmann v. Platte Valley Irr. Dist., 166 Neb. 493, 89 N.W.2d 768 (1958).Where money is paid to an attorney upon a claim of a third party, he cannot withhold the money from the third person upon the ground that he is also a creditor of the person paying the money. Wilder v. Millard, 93 Neb. 595, 141 N.W. 156 (1913).Where attorney was authorized to collect judgment by a levy upon and sale of land, and client advises attorney it does not want to bid on land but desires its money, attorney may purchase at execution sale where full amount of judgment is bid. Washburn v. Osgood, 38 Neb. 804, 57 N.W. 529 (1894).Attorney cannot be compelled by summary order to pay into court money in his hands collected as a fee and as to which there is a dispute between attorneys over division of fees. Baldwin v. Foss, 16 Neb. 80, 19 N.W. 496 (1884).