89 S.E. 955 | N.C. | 1916
CLARK, C. J., dissenting. *242 Walter Gardiner died in 1912, leaving the following will:
AYDEN, N.C. 13 August, 1909.
If I, Walter Gardiner, were to die after this date, it is my will that everything I have shall be divided equally between my wife and my mother for their lifetime, and then to go to my son, Wilbur, if he lives; but if he dies, then to my brother, Isaac. This refers to the money that will come to my estate from the Prudential Insurance Company, as well as what property I now have.
WALTER GARDINER.
J. J. May, the defendant, qualified as administrator of Walter Gardiner. When the will was produced the said J. J. May qualified as administrator with the will annexed, and allotted to the widow of the testator a year's support. This action was then brought by the plaintiff, mother of the testator, for the half of the personal property bequeathed to her in the will. The cause came on to be heard at May Term, 1916, before JudgeWhedbee, when the following judgment was entered:
It is now ordered, adjudged, and decreed, that the plaintiff recover of the defendant one-half of the sum of $400, being the year's provision allotted, and one-half of the sum of $75, the excess value of the two horses, to wit, the sum of $237.50, after deducting one-half of the cost of this action; and in addition thereto it is further adjudged that the plaintiff is entitled to the sum of $21.51, which has been paid into the clerk's office.
And it is further ordered that the cost of this action be taxed, one-half against the plaintiff and one-half against the defendant, and after paying said cost the defendant is hereby directed to pay over the recovery herein to the plaintiff, or her attorney.
H. W. WHEDBEE, Judge Presiding.
The judgment above set forth was, as appears by the record, entered by consent of the parties, through their attorneys. At August Term, 1916, defendant moved to set aside the judgment upon the ground that neither the parties, nor their attorneys for them, had the power, by consent, to enter a judgment by which the corpus of the personal estate could be turned over to the plaintiff, as owner of one-half of the life estate, without securing the remainderman against loss by any default (194) or delinquency on her part, from waste or otherwise. There was no allegation of fraud, and none of mistake, except the one *243
that when defendant consented to the judgment he inadvertently overlooked the error in law, which consisted in not providing for the security of the remainderman against loss. This motion was heard by Judge Lyon at August Term, 1916, when he denied the motion. No facts were found by Judge Lyon, and so far as appears from the record he was not requested to find and state the facts. Defendant appealed.
As the judge was not requested to state the facts, we must assume that he found such facts as would support his judgment, as we do not presume that there was error in the judgment, but the contrary. McLeod v. Gooch,
This brings us to the next and last question in the case, as to the nature and legal effect of a consent judgment. Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being on the party attacking the judgment to show facts which will entitle him to relief. Edney v. Edney,
It is suggested that the burden of proof was upon the plaintiff to establish that the consent judgment was entered by the defendant's attorney with the authority of his client, or, in other words, that he was duly empowered to give the defendant's consent to the judgment. The law is to the contrary.
The general management of a suit is committed to the attorney, and he has a very extensive authority, which springs mainly from his general retainer. He has the free and full control of a case in its ordinary incidents, and as to those incidents is under no obligation to consult his client. In important matters, however, he should do so and take his client's instructions. He is likewise under obligation to render an account when desired. As the client is bound by the attorney's acts, if there is no collusion with the opposing party, the client can have redress in case of injury from the attorney alone.
The attorney may exercise his discretion in all the ordinary occurrences which take place in a cause, and may make stipulations, waive technical advantages, and generally assume the control of the action. Weeks on Attorneys at Law, p. 385 et seq.
(196) A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary *245 authority from his client, and not to have betrayed his confidence or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principle were different. The authorities which support this view are very numerous, and, as the question is an important one, we will refer to a few of them.
Speaking of consent and confessed judgments, it is stated by a text-writer that "The prevailing view seems to be that the power of an attorney to confess judgment for his client is implied, though some disinclination to follow this rule has been shown. In every case, however, the record of the judgment would be prima facie evidence that the attorney who confessed it was properly authorized. It has also been held that an attorney may, by virtue of his employment, consent to a decree in behalf of his client." 4 Cyc., 936. As sustaining this prevailing view, he cites, among other authorities, Hairston v. Garwood,
Anciently the right to question the attorney's authority was denied, and this is the doctrine, even now, in some courts. (Price v. Ward, supra), and intimation to that effect was given in Stump v. Long,
In Stump v. Long, supra, it was said by the Court, through ChiefJustice Smith: "It is not denied that the defendant, whether in person or by his attorney, consented to the order. Indeed, we understand his Honor's finding to go to the extent of saying that the defendant himself consented to it. But supposing it to be otherwise, and that he was only committed to it by the consent of his counsel, how then does his case stand? Every agreement of counsel entered on record and coming within the scope of his authority must be binding on the client. To hold otherwise would lend much uncertainty to many of the most important business transactions — so important and so solemnly disposed of that the parties are willing to have their agreements in regard to them enter into and become a part of the judgments of the court, to be (197) permanently recorded upon the dockets of the court. Neither the courts nor parties can look behind such an act on the part of an attorney to inquire into his authority or the extent and purport of the client's *246
instructions. His acts and his admissions must be taken as those of him whom he represents." As said by Judge Reade in Bradford v. Coit,
If that be a correct statement of the law (and we do not decide that it is, as we need not do so), we are bound to treat the case as if the petitioner had been actually present and given his assent to the order as drawn. He agreed to it, as Judge Smith said, because his attorney did. The attorney had the authority, in this case, to appear for the defendant generally, and to act in his behalf, and must be presumed to have had power to consent to the judgment. In view of this fact, the following statement of the law, taken from Harrill v. R. R.,
But the only question here is whether prima facie the attorney had authority, and not whether he had such as is incident to the relation of attorney and client. If there was prima facie authority, it follows, of course, that the burden of proving the contrary is upon the defendant, or the client. In Rogers v. McKenzie, supra, it is said by the Court: "If the existence of ample authority to act is assumed from the appearance of the attorney, with the sanction of the court (and ordinarily it could not be questioned), all the results must follow as if actual authority had been conferred, and among them the rightfulness of the defendant's payment."
It is the course of the King's Bench, said Holt, C. J. (1 Salk. 86), "when an attorney takes upon himself to appear, to look no further, but to proceed as if the attorney had sufficient authority, and to leave the party to his action against him if he has suffered by his default." (198) Jackson v. Stewart, 6 Johns, 3. And Chancellor Walworth said:
"As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regularly licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client, nor, of course, to stop and ascertain the *247 extent of his authority." Insurance Co. v. Oakley, 9 Paige, 196; Weeks on Attorneys, secs. 198, 199.
The cases we have just cited were approved by this Court in Rogers v.McKenzie, supra. We also refer especially to Morris v. Grier,
As said by Kent, C. J., in Denton v. Noyes, 6 Johns (N.Y.), 295: "If the attorney for the defendant be not responsible or perfectly competent to answer to his assumed client, the court will relieve the party against the judgment, for otherwise a party might be undone. I am willing to go still further, and, in every such case, let the defendant in to a defense of the suit. To carry the interference further beyond this point would be forgetting that there is another party in the case equally entitled to our protection." This statement of the law was quoted with approval and applied in the recent case of Ice Co. v. R. R.,
It is said by the Chief Justice in Westhall v. Hoyle,
Weeks on Attorneys at Law, after reviewing authorities, thus (199) states the principle: "Confession of judgment by counsel representing the case, with the knowledge of the party, is sufficient, without any special authorization to that effect. In attacking a judgment obtained by confession, especially after a long lapse of time, merits must be shown by the applicant. To justify a court of equity in interfering with *248 a judgment at law on the ground of want of authority to appear, the evidence should show clearly and unequivocally that such judgment was fraudulently and wrongfully obtained without negligence or fault on the part of the judgment defendant. The burden of proof is with the complainant, and before he is entitled to relief he must fully establish what he alleges to be true. And this cannot be done for the first time on review. With this understanding, there seems to be no doubt but that a direct action in equity lies against a judgment obtained by the unauthorized appearance of an attorney. But it should be brought with all possible speed after the judgment is rendered. It has been the practice, sometimes by motion and sometimes in chancery, to relieve parties against judgments so rendered."
Price v. Ward,
In Denton v. Noyes, 6 Johns, 305, Chief Justice Kent, after an elaborate review of the authorities, said: "The rule appears to me to be settled upon too much authority to be denied, and upon too much principle to be disturbed. Without it there could be neither safety to suitors nor trust in the profession." The action in Post v. Neafie, 3 Caine, 26, was brought upon a decree of a court of chancery. The decree, it appeared, was founded upon an agreement between the parties, signed by their attorneys. One of the objections to a recovery, urged by the defendant's counsel, was that the agreement on which the order was made was out of the ordinary course of the power of solicitors, and that no authority appeared for making it. The objection was not (200) noticed by any member of the court, excepting Justice Spencer, who said: "If this had been an action depending in a court of common law in New Jersey, and the attorney had confessed a sum of money due to the adverse party, it could never become a matter of inquiry, in a suit on the judgment, whether the attorney had acted by authority. If in this case the defendant's solicitor was unauthorized to enter into the agreement on which the decree was ultimately founded, *249
it was examinable only in the court having original jurisdiction. It is to be intended that the solicitor acted by the direction of his client and for his benefit." Notwithstanding the weight of these authorities, "the current of recent American decisions," it is said in Price v. Ward, supra, "is against the rule, and in favor of admitting the authority of the attorney to be drawn in question. Osborne v. Bank of U.S. 9 Wheaton, 829, and other cases. The record is prima facie evidence that the attorney who appears to the suit or confesses the judgment is duly authorized for that purpose, and, in the absence of contradictory evidence, will be held conclusive. But the authority of the attorney may be drawn in question in pleading, and may be disproved by evidence." To the same effect is Bank v. McEwen,
But as far as we need go, without indorsing all that we have quoted, is to hold that while the want of authority in the attorney may be shown, the burden of showing it is clearly on the party who attacks the consent judgment in a proper proceeding brought for that purpose.
If the parties had no authority to affect injuriously the rights of Wilbur Gardiner, son of the testator and the remainderman, he will not be prejudiced, in a legal sense, by the decree, as he is not a party to the suit. He may, perhaps, be entitled to intervene by motion in the cause or an independent civil action, as he may be advised, and assert his claim, and arrest or stay the payment of the fund to plaintiff by injunction or restraining order, until his ultimate rights may be determined. But this matter is not before us, and we neither express, nor intimate, any opinion with regard to it, nor will we consider the question whether he has a right, as now contended by defendant, to have the fund preserved in some way for his benefit and enjoyment when the life interest has expired, as, not being a party to this proceeding, he could ask for no such relief, and, besides, the facts as to the attorney's authority have not been stated in the case.
Affirmed.