53 S.E. 167 | S.C. | 1906
January 30, 1906. The opinion of the Court was delivered by This is an appeal from an order refusing a motion to set aside a judgment on the ground of mistake, surprise, inadvertence and excusable neglect; also from an order requiring one of the appellants to surrender possession of the lands described in the complaint.
In order to understand clearly the questions presented by the exceptions, it will be necessary to state somewhat at length the facts of the case. In 1902. Carrie V. Dixon brought an action for partition of two tracts of land — one containing sixty and the other about 244 acres. The complaint alleges that James G. Floyd died in 1898, seized and *205 possessed of said lands in fee conditional, leaving as his heirs at law, his widow, Theresa Floyd, his daughters, Carrie V. Dixon, Eula Floyd and Mary James Floyd, and his son, John Floyd — all of said children being minors, except Carrie V. Dixon. J.P. Phillips was made a defendant on the ground that he claimed some interest in the lands, and he answered the complaint denying certain allegations thereof, and alleging that he and others to whom he conveyed an interest, were the owners in fee and in possession of said lands. Theresa Floyd answered the complaint through her attorney, J.Y. Culbreath, Esq., claiming that she was entitled to dower in said lands. J.F.J. Caldwell, Esq., an attorney at law, was appointed guardian ad litem of the infant defendants, and he filed an answer submitting their rights to the Court. On motion of plaintiff's attorney, with consent of the attorneys representing the several defendants, all issues of law and fact were referred to the master, who fixed the 23d of February, 1904, for holding the reference; but as the parties were not ready to proceed, it was postponed until the 27th of February, 1904.
The master in his report says: "At a reference held on the 27th February, 1904, there were present Mr. Schumpert, one of the attorneys for the plaintiff, Mr. Grier, of the firm of Sheppards Grier, representing that firm, and the defendant. Phillips, and Mr. Caldwell, guardian ad litem of the three infant defendants. Mr. Schumpert represented J.Y. Culbreath, attorney for Theresa Floyd. No testimony was offered in support of the claim of dower, made by the defendant, Theresa Floyd; nor was testimony offered to impugn or qualify the deed by James G. Floyd to Phillips, above mentioned. On the contrary, the counsel for adult parties to the action agreed upon the following adjustment and settlement of all the matters in controversy, that is to say, that the said J.P. Phillips shall convey the tract of sixty acres, more or less, described in the pleadings, to the defendant, Theresa Floyd, for and during her natural life, with remainder to the plaintiff, Carrie V. Floyd, and defendants. *206 John, Eula and Mary James, in equal shares, the child or children of any one of the remaindermen dying before the said Theresa Floyd to take the share of his, her or their parent. The guardian ad litem of the infants expressed no dissent to this arrangement, but withheld his consent, and left the matter to the judgment of the Court. Testimony was presented to the effect that the proposed settlement is proper and for the interest of the claimants, as will more fully appear by the notes of reference accompanying this report." The master recommended that said agreement be carried into effect, and his report was confirmed by an order of the Court on the 2d of April, 1904. Attached to the order confirming the master's report is the following:
"We consent.
"Schumpert Holloway, plaintiff's attorneys.
"J.Y. Culbreath, attorney for the defendant, Theresa Floyd.
"Sheppards Grier."
On the 2d of July, 1904, an order was made allowing J. P. Phillips to repurchase the tract containing sixty acres for $400. Thereafter Carrie V. Dixon and Theresa Floyd filed a petition asking that said decrees be set aside on the ground of surprise, mistake, inadvertence and excusable neglect, in that they did not have any notice of said reference; nor of said agreement until said orders had been signed; nor that there would be applications for said orders; and in that their attorneys did not have authority to enter into said agreement, by which they allege their rights were sacrificed. They also asked that their attorneys be changed, and that Messrs. Ellis G. Graydon and Magill Magill be substituted upon the record. On the 30th March, 1905, an order was filed refusing the petition to set aside said orders.
On the 3d of April, 1905, a rule was issued by the Court, requiring the defendant, Theresa Floyd, to show cause why she should not surrender possession of said lands. Upon hearing her return, an order was filed requiring her to surrender possession of said premises. Carrie V. Dixon and *207 Theresa Floyd appealed upon exceptions, which will be set out in the report of the case.
The first question that will be considered is whether his Honor, the Circuit Judge, erred in refusing to set aside said orders on the ground of surprise, mistake, inadvertence or excusable neglect. The appellants rely upon section 195 of the Code, which provides that the Court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order or other proceeding, taken against him through mistake, inadvertence, surprise or excusable neglect. A party cannot invoke the provisions of this section when his attorney had full knowledge of all the facts connected with the rendition of the judgment and actually consented thereto, in open Court, in the absence of facts showing mistake, surprise, inadvertence or excusable neglect on the part of the attorney, which facts are not made to appear in this case. Steele v. R.R.,
The next assignment of error is because the Circuit Judge should have ruled that the appellant's attorneys were not authorized to enter into said agreement. The agreement was made during the progress of the case upon the hearing before the master. It must, therefore, be regarded as having been made in open Court. The distinction between the powers of an attorney during the progress of a case in open Court, and at other times, is clearly pointed out by the authorities. Ex parte Jones,
The last question to be considered is whether there was error in requiring the defendant, Theresa Floyd, to surrender possession of said premises in the summary manner hereinbefore mentioned. She was a party to the action and the Court had the right to make such orders as were necessary to make the decree effective.Ex parte Qualls,
It is the judgment of this Court, that the orders of the Circuit Court be affirmed.
