*1 “It is thе duty court, requested, trial if direct evidence verdict for the adduced party who has (his sufficient warrant a verdict favor, and n-o appreciably tending evidence overthrow the case so adduced made has been by the opposite party.” For the foregoing reasons, finds that Court will, trial court found purported should have 'the 6, 'and August 1962, dated had been was not the revoked Siler, Jr., last will and of J. testament Hammond contestant, should have a verdict in directed favor should jury. not have submitted the issue unnecessary Since this is it is to pass decisive of case assigned by the other errors contestant. This case is to the Court of Morgan remanded Circuit to enter a County with direction order in ac- cordance with this opinion.
Reversed and remanded direction. al., G. et William Belcher, Administratrix, etc., et al. Sallie
(No. 13111) 1972. March Submitted Decided 1972. February Opinion March Dissenting *2 Litz, Rollins, appellants. H. D. J. E. Preiser, Catsonis, E. Leo Stanley P.
Stephen Meyer, appellee (Belcher). Judge:
HaymoND, action, Circuit Court civil instituted In this im- 12, 1969, August County, Virginia, West Kanawha Kelly, of Edward H. peach holographic will alleged a plain- motion deceased, the court denied circuit a of dismissal of tiffs aside and vacate to set compromise; prin- challenged a upon action based plaintiffs, for decision is whether the cipal question 60'(b) of the Vir- facts, are under Rule West entitled Procedure to relief the order ginia Rules Civil dismissal. plaintiffs were original complaint, William
In the Vickers, decedent, a brother of the Robert Lee Kelly, G. Vickers, three of Vickers, Kenneth Kelly Allen Vickers, a heirs Inez deceased sister the children and defendants Sallie Belch- H. were Kelly, of Edward H. annexed of with the will Edward er, Administratrix H. Kelly, May- of Edward deceased, sister Kelly, Belcher, Belcher, Belcher, of Sallie and Edna a son wood wife, his consisting who given the will were real estate ac- home of The the decedent and automobile. Charleston, tion was filed Jack West O. Friedman of Virginia, for the at the instance William G. retainer Kelly, paid who $200.00 on his fee but the amount of not been fixed the fee has any agreement between them.
By 28, 1970, order entered an amended com- January plaint filed in Inez remaining which the children of Vickers, deceased, Vickers, Carl Dean Lawrence Vick- E. ers and Frericks, Louise added as plaintiffs. complaint defendants filed answers to the amended complaint which denied the allegation such of Edward H. question was the will plaintiffs sought deceased. the amended By complaint of an de- impeach the will and demanded trial issue writing, visavit non by jury vel ascertain whether County has been admitted Court probate by last will and County, Kanawha is not the true *3 testament of H. deceased. Kelly, Edward Belcher, defendants, Belcher and Edna Maywood 30, gave April notice that taken on depositions would be 1970, which, motion un- by at time the (b) der Rule of Civil Procedure is attacked 60 of the Rules respec- by plaintiffs, negotiated by attorneys the was the Maywood the the defendants tively representing plaintiffs, Belcher, Belch- Belcher and Edna and the defendant Sallie er, the annexed. Administratrix with will for all attorneys and the approved by order endorsed
By Friedman, Jack and entered the O. parties, presented by 1, representation the May upon the court on by the court that all matters had been between the the parties on the motion of the parties, joint and the last writing involved be declared valid will paper deceased, ad- of it was Kelly, and testament Edward H. writing the valid paper and decreеd that such was judged deceased, H. Kelly, of Edward last testament action be from the docket ordered that the stricken was of the court. 24, 1970, regular
On November next term during the court after con- 1, the term at order May which the firming entered, the plaintiffs, repre- was Friedman, sented Jack by attorneys who succeeded O. who had court discharged been moved the plaintiffs, n underRule 60 Procedure, (b) of the Rules of Civil to set 1, aside and vacate the order of 1970 and reinstate May upon docket; arising upon this and the matters case 17, the motion December 1970. At the hearing were set hearing testimony Kelly, the court heard the G. William Vickers, No Jacqueline Vickers and his wife. C. introduced in of the defеndants and evidence was behalf court the motion based upon upon the decision of the final By the plaintiffs. the evidence behalf of 1971, found May 17, rendered the court that no fraud was court counsel and that there upon perpetrated grounds setting no conditions or asserted aside or va- 1, motion 1970and denied the cating judgment May judgment May From the 1971 this plaintiffs. granted appeal July upon ap- Court this leave of Court plaintiffs. By plication the final judgment filed their motion to reverse plaintiffs 17, 1971, proceeding and this was submitted for de- of May reverse, upon motion to the motion to set upon cision 1, 1970, judgment May upon and vacate aside record, arguments the oral briefs attоrneys for the for the attorneys defendants. in April, plaintiff, William G.
Sometime Haven, Indiana, in New talked to Friedman who resided litigation. to ascertain the status of the Fol- telephone came to Charleston on April the conversation lowing meet, met, appointment and made 28, 1970 *4 on the and following day at his office discussed Friedman him for an hour a half. approximately and case with that the Belchers or their Kelly attorney, told Friedman Preiser, Charleston, to compromise wanted E. Stanley of a compromise no terms were discussed. but the case to on the Friedman Preiser’s office go to with agreed Kelly morning time, accompanied by of April at which office Friedmаn’s plaintiff Leroy Vickers, to Kelly went thirty he for about where and Vickers remained Leroy office minutes and then Friedman to Preiser’s went with compro- an offer of depositions to attend or to consider office to to Preiser’s Kelly mise. testified that went they to and take or to Preiser had offer depositions see what go over Vickers testified that Friedman said “Let’s Leroy and they say.” see what have to office, and Vickers Kelly Leroy arrival at Preiser’s
Upon and Vick- Kelly, Belcher and Edna Belcher Maywood saw Kelly room reception ers and Friedman went to a where minutes. Short- forty-five and Vickers remained about Friedman into room went ly entering reception аfter and Vickers Kelly Leroy room and later he took another room remained for some time. they to a conference where room time, conference Friedman, from time to left the said, where, attorneys he were into another office went he returned to on a After time working compromise. to said “We will according Kelly conference room and Sometime later in a minutes.” ready few papers have and, according a paper into the room came with Friedman to third”, paper and handed the “This is a said he that a third”. testified and said “it was Vickers was involved of the estate thought two-thirds one-third and to receive compromise Kelly was receive one-third. also heirs the Vickers room, into the shook hands Preiser came testified that $5,666.66that we wouldn’t “There is him and said- court.”, Friedman in- and that if had went to got Preiser said to Preiser troduced that Fried- paper Vickers. thing the same and it this case the release involved was produced man Vickers, who by Leroy and then by Kelly first signed Vickers heirs it” to the other “distribute to the release signatures him to obtain their told him. it to then to send hours, three office about in Preiser’s had been After office and left Preiser’s and Friedman Kelly, Vickers *5 together walked until came they toward Friedman’s office to There place parked. where car had been Kelly’s left home in they Kelly Friedman and Viсkers to his drove Marmet and then went to the home of his sister-in-law which, lunch, Chelyan having after he left his home Indiana at home about 2:00 o’clock and arrived his about 9:00 o’clock that evening. the same facts as
Leroy substantially Vickers testified respect testified to occurred by Kelly those with what that Le- except at Friedman’s office and at Preiser’s office roy attorneys Vickers stated that he learned while the by that discussed negotiating they of the real estate and the automobile telephone value appraisers and automobile salesmen valued the $12,000.00 $15,000.00 at instead and the auto- real estate $17,000.00 $2,000.00 at total of mobile which was compromise. persоnal property of Edward basis $11,000.00 at about Kelly originally H. was valued and the $12,000.00 at or a total value of real estate estate about $23,000.00. Leroy Vickers both testified that under-
Kelly they that one- by stood was receive of the estate Vickers heirs were to receive third that, Belcher one-third, any event, Sallie was entitled estate, and that only to one-third other two- compromise. involved testified thirds was he read the release but did not understand that it and that Kelly glanced through Vickers testified it but “I not time to read it and that didn’t hardly did even admitted that he signed at it.” He the release but glance be did understand it. both They stated that testified not know it they signed did when Kelly and the Vickers heirs were to receive together instead one-third each of the only one-third estate. signed Kenneth
The release was Vickers and left where, at his home that evening during Vickers by Leroy wife, Vickers, absence, Jacqueline his C. examined the release. After discussing with his wife called a lawyer acquaintance telephone and read the release to him. He him re- according advised to the lease Kelly and the Vickers heirs one- together received third instead of two-thirds the estate.
After learning that Kelly and the Vickers heirs were *6 receive only one-third together instead of one-third each by the compromise, Leroy Vickers informed G. William Kelly by telephone later night that of the effect of the release and Kelly advised him that he would not accept the compromise and Kelly also informed Friedman to that effect aby telephone call on Vickers May Leroy called Friedman on evening 1 and informed May him that he agree did not with the release and after Le- roy Vickers and his wife informed the other Vickers heirs about the release they sign refused to it.
In the 7May Friedman, conversation with di- Kelly rected him to deliver handwriting to specimens Vickers and told Friedman that going along “he was with Leroy.” By letter of May Kelly Friedman informed of his discussions release and Vickers that the Vickers heirs did not to desire settle the case accordance with the determined, terms he previously that had advised the сourt that the case would have to re- be opened, and that it was continued September until term of the court. In that letter he a suggested that meet- ing be held all to determine ground rules for the litigation. future conduct
On May Friedman he again stating that Kelly wrote had received no response from him or Vickers and re- to contact him quested Kelly as soon possible. Kelly did not respond to either of those letters. letter dated June By 2, 1970,prepared by the wife of Leroy Vickers in behalf of Kelly heirs, two the Vickers Friedman was dis- charged a statement for his services requested. Friedman on Kelly wrote June 1970and informed him that the file would be forwarded to whomever he desig- upon payment nated of Friedman’s fee. He again wrote a cer-
June 23 and informed he had received Kelly that $5,666.66 representing tified check in the amount of to- according agreement full settlement reached May April 30 copy Preiser’s office on and enclosed after $2,000.00, order. He also stated that fee was that of the fee was crediting the retainer of the balance $200.00 from $1,800.00 $2,000.00 fee deducting and that after $3,666.66for $5,666.66 there remained distribution six $1,833.33 each of the Kelly the amount $305.55, Vickers in the amount of and he enclosed heirs ac- never his checks in those amounts. The checks were returned to cepted by or the heirs and were prepared letter Mrs. Vickers with to, agreed сomment that the settlement had been re- claim, authority Friedman had no settle might Legal course Ethics Committee. sought told that he July In letter of 1 Friedman exe- had had. Leroy Vickers the settlement -and informed of release, Friedman had not been cuted compro- after the dissatisfaction until several weeks intimidated executed, had that he not be mise been would *7 Committee, suggested the by threats of recourse to Ethics contact an should attorney that the who consult pay- turn matter of him, and said that intended to the he never The special over to a receiver. release was ment Though Friedman other four Vickers heirs. signed by the and requests signed by made that the release returned to him it has Vickers and Kenneth Vickers Friedman. been delivered to never and the signatures and the release, except The the title in this form: spaces signatures, is pay- for and in consideration undersigned, “The Friedman, the sum of to their Jack O. ment discharge and release and $5,666.66, hereby forever fully do Belcher Belcher and Edna Belcher, Maywood Sallie action, de- claims, causes, all causes any and undersigned or any mands which said have, against hereafter the had, have, or shall now Belcher, Belcher, Sallie and Edna Maywood Belcher whether at law in and more release equity, especially any discharge claim that the written Will purported invalid, Deceased, agreed Edward H. it Kelly, being is writing that the claimed to be the Will and Testament Last Deceased, Edward H. Kelly, is the valid Last Will Deceased; agreed Testament of Edward Kelly, H. and it is part as undersigned this Release that the cause to be entered in the Court an County Circuit of Kanawha Order declaring said Last Will and Testament to be valid Last Will and Kelly, Testament Edward H. Deceased. following signatures
“WITNESS this seals as of April, the 30th day 1970.” advising order case court that the matters
had been agreed parties, between dated and entered May 1, 1970, presented by and approved Meyer defendants, and Preiser attorneys is couched in this language:
“This day Friedman, came the O. their plaintiffs by Jack defendants, came attorney, and Belcher and Maywood Edna Belcher, by Preiser, E. their Stanley attorney, defendant, Belcher, came the Stephen Meyer, Sallie P.
her unto Court attorney, parties represented that all matters this have been case between parties and all parties jointly paper writing move that the involved this suit be declared the valid to be Last Will Deceased; and Testament of H. there Edward ADJUDGED, being thereto, no objection hereby writing ORDERED and DECREED which paper to Probate Court of County was admitted Kanawha County, Virginia, copy was attached as West case, complaint exhibit to is the Last valid *8 and Testament Edward H. Kelly, Will Deceased. being case, further dоne in nothing
“There the Clerk ORDERED to strike this case from the docket.” that be noted that the release it is
It should states signers release of the release will part that the to be the last and testament declaring cause an order will H. de- of Edward the valid last and testament ceased, Court of Kanawha in the Circuit be entered that he County. Kelly testified that did know a letter the time he received order had entered until been 13, Vickers testi- May Leroy 1970. from Friedman dated entered that the order had been fied that he did not know 6, both testified until June and Vickers Kelly Leroy them and the to represent that Friedman authorized was Kelly case their but other Vickers heirs as Friedman that he could he never told also testified that did not certain sum and that he settle the case for any have a settle- dismiss the case or authorize ment order entered in it. that discussed
Though Kelly the evidence shows April than an hour on for more case with Friedman Friedman’s and were in Leroy Vickers Kelly morning minutes on the approximately thirty office for to attend they left for Preiser’s office April before case, and that of the compromise or to discuss deposition ap- at Preiser’s office Kelly and Vickers were Leroy compromise nego- was three hours when proximately by attorneys prepared tiated the release was them, signed by Vickers and presented Kelly Leroy comрro- that terms of any the evidence does not disclose specific or mentioned, approxi- that any ever or mise were mate sum ever considered them as basis was amounts were compromise, any or that tentative terms or be- rejection them for or approval ever submitted to their attorneys and fore the concluded the re- were informed of before Kelly Leroy the release for negotiations presented sult short, In fails to signatures. their evidence show of the terms either or Vickers was informed the at- before it was concluded Vickers was advised torneys, or either attorneys while the terms
767 engaged in their or discussion in such discus- participatеd sions, or that either of to compromise them consented at any time after they became of its Further- aware terms. more, it appears from nor the evidence that neither Kelly Leroy Vickers understood the com- terms or basis promise at the signed time instead they the release but thought that Kelly was to receive one-third of the amount in controversy and that the to receive Vickers heirs were one-third of that to- amount instead of one-third to them gether, and that did not fully know understand Vickers, basis of the compromise until Jacqueline C. wife of Leroy Vickers, and the compromise questioned
n until Vickers, in- by an consulting attorney, was formed of the actual compromise basis and imparted that information to later further evening. that It appears from the un- compromise evidence that the when derstood by Kelly ap- and the Vickers heirs was never proved and the checks tendered never by accepted but were The evi- returned him promptly. dence in entirety its more than nothing does show Kelly and enter Leroy Vickers authorized Friedman to compromise negotiations; into it fails to show that Fried- man was authorized to conclude the on the Friedman, basis effected by Meyer Preiser and without the knowledge, consent or and Vick- approval ers not any during negotia- which did occur at time tions between the attorneys. general
The
and
rule is
widely recognized
well settled
attorney
authority
that an
who is clothed with no other
than
has no
arising
employment
his
attorney
by
general
virtue
his
retainer
com-
implied power
a claim or
action
cause of
client.
promise
settle
Annotation,
2,
In W.Va. S.E. syllabus Court held Point 5 of the A.L.R. this clothe “The mere client attorney relation of does implied attorney authority held in claim of the client.” In that this Court also case makes a syllabus Point 6 of the that “Where unauthorized his client consents vacated judgment thereon, judgment may client, made.” application aggrieved seasonably also “The opinion quotation: that case contains *10 authority general rule is that an no or attorney power has implied to or a express case or settle without com and where a is based such authority, judgment promise, may said be set aside and vacated manner judgments may same as other be vacated promptly pre is aggrieved application client when 485, In S.E.2d Campbell, sented.” Rader 134 W.Va. 61 v. 228, general that “It that the opinion states is a a pending case does not clothe employment lawyer A compromise.” him or client to settle authority course, author may, give attorney express or special action, but such ity his cause settle clear and Bursten v. unequivocal. must be authority Green, (Fla.), 172 2d 472. So. 1001, the (3rd Cir.),
In 153 F.2d McCarthy, Freeman v. Hahn, opinion contains from Preveden v. this quotation S.D., attorney “The (D.C., N.Y.), Supp. 36 F. 952: action, ad signed dismissing plaintiff, who the consent authority no express mits file that had in an affidavit on- he do not apparently do fact. so, and this Defendants is otherwise, existed authority but contend such claim In conten attorney’s retainer. by implication wrong. right no tion are An has the defendants a nor to consent to dismissal it settle his client’s case claim, a release of the upon the merits in effect is No such authority from his client. express without Joyce, retainer. Whitе implied in mere v. authority 129, 788, 921; Kingsbury L.Ed. v. 128, 158 15 39 U.S. S.Ct. 1047; 638, 33 L.Ed. United 650, 10 S.Ct. Buckner, 134 U.S. 343, 371, 563; 45 L.Ed. 21 S.Ct. Beebe, 180 U.S. States v. 725; Cir., Countryman 111 v. F.2d Poole, 9 Schram v.
769
Breen,
In Northwest Perez, Realty v. Company S.D. N.W.2d 114, the court held that a to a judgment pursuant compromise by an authority of his attorney without client may be vacated upon application of the client. Bice Stevens, In Cal. 2d 325 P.2d App.
opinion contains this language: “The of the law is policy to have every litigated merits; case tried its looks with disfavor upon party who, regardless of the merits case, mistake, to take attempts advantage of the sur- * * prise, inadvertence, or *. The neglect of his аdversary. gist plaintiffs’ knowledge motion was that without their or consent deprived their in court to day litigate record, their claim on the merits. The without conflict, supports their To otherwise contention. hold would be to the cause authority erode client’s control of action subject litigation.” matter of the vacate the motion of the to set aside and *11 (b) judgment 1, 1970, of of the upon is based Rule 60 May Procedure, of grounds assigned, among Rules Civil others, 1 judgment May per- are that the of of entry the court, a petrated upon fraud the did not con- of judgment, attorney sent to the the and that their entry obtaining exceeded the dismissal the authority his in action. that: (b) pertinent, provides
Rule 60 extеnt the here court may such as are the upon just, “On motion and terms a final a party legal representative or relieve following order, or for the reasons: judgment, proceeding inadvertence, neglect, or Mistake, surprise, excusable (1) cause; (2) evidence which newly unavoidable discovered in discovered time due could not have been diligence (wheth- (b); (3) fraud for a trial under Rule move new extrinsic), intrinsic or mis- heretofore denominated er of an adverse party; or other misconduct representation, satis- (4) the the has been void; (5) judgment is judgment fied, released, judgment or or a discharged, prior vacated, has been or otherwise which is based reversed or it is should have longer judgment no that the equitable justifying reason application; (6) other prospective any motion the operation judgment. relief from time, and for reasons be made reasonable shall within after months (1), (2), (3), (6) not more than eight order, or or taken.” judgment, the was entered proceeding Inter- (b) Rule Court in has been considered Gibson, S.E.2d city Realty 154 W.Va. Company In syllabus that case held 3 of the this Court in Point rule that a under the motion to judgment vacate default and that is .to court addressed the sound discretion the on will not ruling the of the trial court such motion of an abuse showing there appeal disturbed unless is trial court of such the action of the discretion and affirmed Fed- (b) of denying the motion to Rule 60 vacate. many respects eral Rules of Civil Procedure Virginia Rules 60(b) identical with Rule the West interpreted applied Civil Procedure has been many federal courts. decisions indicated, it from the evidence
As heretofore is clear authorized plaintiff that the was not never compromise was compromise, conclude com- to or that the approved by plaintiffs, consented plain- completed was not that counsel promise and in obtaining negotiating tiffs acting under a May was entry he was in the mistaken belief that misunderstanding and and obtain authorized to conclude the The contention of entry judgment. “had that the release conсluded and addi- gave only
nothing to do the settlement” *12 The clients, is not correct. protection to Preiser’s tional part as of release provision entry cause the release will of signers release that and testament to be declaring the last of order de- H. of Edward valid last will testament not to be ceased, order was clearly indicates that such and delivered executed entered until the release was action of which, course, of occurred. The never entry obtaining and in concluding 1, 1970, appears of of which he May the judgment misunderstanding, mis- a faith, done in constituted good provision applicable apprehension mistake within relief from (b) justifying of Rule 60 also a reason oрeration judgment applicable provision within (6) of rule.
In Proce- Holtzoff, Practice Federal Barron 1325, in enumerat- Edition, 3, Section Rules Volume dure, of Rules 60(b) the Federal Rule of ing instances under bemay a judgment from Procedure in relief Civil which a “Relief ordered, language: the text contains this a 60(b) (1) for under Rule be ordered judgment may a clerk of law oversight of Thus the variety reasons. bemay of claim a statement to serve more definite
failing complaint. dismissing a ground vacating judgment because be vacated may a order of referee’s entry terms of counsel’s misunderstanding a based on judg- A to the order. consent and the latter’s authority upon erro- by reliance consent induсed ment entered officers enforcement by government representations neous va- may be regulations control price as to the violation availability regardless neglect cated excusable after service entered A default counsel. but jurisdiction to confer sufficient process which was fault notice without had no actual the defendant suffered default Likewise be set aside. part should appearance misunderstanding as of a by reason also vacated, may may counsel representation by counsel neglect excusable through the default suffered or ex- mistake or the litigation, other preoccupied with counsel.” reprеsented party neglect cusable F.2d Inc., Cir.), 267 (9th Patapoff In v. Vollstedt’s voluntary where, petition after a held that the court *13 772 con-
bankruptcy, the defendant executed an admission or fession of bankruptcy adjudicated bankrupt and was made a that had a she prompt showing she defense which was misled into erroneous waiving through alleged action of her the defendant entitled to have attorney, was adjudication vacated under of Rule provisions (b) 60 opin- Federal Rules of Civil Procedure. The ion contains these think on this statements: that “We record it deny abuse of discretion for the court to (b) motion to vacate the Rule 60 is adjudication. clearly designed permit legal desirаble objective: that may cases be decided on their ‘The recent merits. (b) cases applying Rule held uniformly * * * must given a liberal the in- Since construction. merits, terests of justice are best served a trial on the after a only careful of all considerations study relevant should courts refuse to default Tozer v. open judgments.’ 245; Co., Cir., 242, Charles A. Milling Krause 189 F.2d accord, Lines, D.C.Cir., Bridoux v. Air 214 F.2d Eastern 207, 210.”; Mr. Black in Klapprott and “As stated Justice 390, States, v. United 335 U.S. 69 S.Ct. L.Ed. 266: of the “other simple English, language ‘In clause, for all five 'except particularly reason” reasons specified, them to power adequate vests courts to enable action judgments, appropriate vacate such whenever ” Leong v. Railroad accomplish justice.’ See also Transfer Service, Inc., 555; (7th Cir.), 302 F.2d United States Gould, (5th Cir.), 301 F.2d
Though upon cross-examination Maywood if they they were asked knew repairs, Belcher and Edna Belcher had made substantial compro- the home to entitled under the they mise, Vickers, in to such response both that the Belchers stated that did know questions, motion had made to the home. As the any improvements was heard and determined the evidence behalf in behalf plaintiffs and no evidence was introduced Belcher Belcher to Maywood defendants and Edna improvements home, show it does expenditures not appear confirming reversal the order the com- promisе will be to the prejudicial Maywood defendants Belcher and Edna impose any Belcher or burden other than to deprive temporarily money them of the use of the advanced by them in connection compromise. with the
At the 17, 1970, beginning hearing on December the circuit court indicated that had miscon- ceived their remedy suggested three available alterna- *14 remedies; tive motion, correctly but the court heard the 1, found that in the obtaining entry May the order court, 1970 Friedman perpetrate upon did fraud and denied the motion final by judgment May 1971.
Under (b) Rule 60 should be construed liberally justice, for the purpose accomplishing granting refusal of relief is the sound discretion of the сourt. within evidence, It is clear that under the the substance of which has been the circuit court should opinion, outlined this have sustained the motion of the and should have order of May set aside and vacated dismissal hold, facts of each particular Numerous cases rule case, relief afforded grant the refusal v. Commission- Spann constitutes abuse of discretion. See 715; Columbia, 443 F.2d (D.C.Cir.), ers the District 212; Inc., F.2d Airlines, (D.C.Cir.), 429 Bibeau v. Northeast 783; Leong v. Neustadter, (9th Cir.), 324 F.2d Butner v. 555; Cir.), F.2d Inc., (7th 302 Service, Railroad Transfer Cir.), (2nd Corporation, Negron Navigation Peninsular v. F.2d Cir.), (9th 859; Cunningham, 279 F.2d Russell v. (3rd Company, Milling 797; Charles A. Krause Tozer v. Corpora- Laundry Huebsch Cir.), 242; Fleming 189 F.2d tion, (7th Cir.), F.2d 581. accomplish construed to (b) liberally
Rule 60 should be an from the evidence appears justice, when resulted confirming order of dismissal of the attorney belief or mistaken misunderstanding dismissed virtue of action was cause parties whose un- and that such authorized to parties, and was not consented such motion to set judgment of the trial court their denying aside and vacate the order of dismissal constituted abuse of be reversed judgment discretion and such upon appeal. granted, judgment
The motion to reverse is circuit court motion to set aside and vacate denying the this reversed, dismissal order of 1970 is May pro- is remanded to that court such further proceeding to the ceedings conformity principles be may proper enunciated this opinion. granted;
Motion to reverse reversed and
case remanded.
CarrigaN, Judge, dissenting:
I respectfully opinion. dissent from the While majority Points Syllabus statement as contained in law 2 may correct, I to the apply feel that do not facts of particular case.
There Did (1) are two issues in this case: namely, Friedman, heirs, the and the attorney Kelly Vickers act under a the entering mistake and without in authority order, (2) dismissal its did the circuit court abuse discretion refusing in to the dismissal order? set aside opinion the order on majority would set aside dismissal the basis of a on Friedman’s misunderstanding mistake part of Rule bring provisions which would this under the (b) sup- I not is R.C.P. do believe that this conclusion ported by the facts circumstances. Vickers, behalf, ostensibly his own in heirs, moving parties behalf of the Vickers the were Friedman, and in the employment attorney, their
effort to they set aside the It con- Kelly appears will. ferred their on the attorney during negotiations with they settlement and and that compromise the will case an- present at the time the settlement was proposed nounced Kelly to them their and that both attorney showing at that a release their signed time and dis- compromise concurrence and to the agreement as to the missal their suit. If had they any questions terms, as now they or did not understand its at contend, attorney should of their inquired Fried- Therefore, time. not a case in which is man, heirs, acted as and the Vickers Kelly had under mistaken that a settlement belief all facts surround- clients, been since ing their indicate that negotiations and conversation fact they agreement. had the settlement approved
To contention of and the Vickers heirs adopt settlement, understanding to their claimed of the one-third, is that heirs should receive the Vickers Belcher, one-third, should receive one-third and Sallie Belchers, leaving parties who would Maywood of the will have taken the under the terms property matter is no of the question, nothing, on its incredulous contesting parties between is face.
I Circuit Court of Kanawha do not believe that refusing County abusing its discretion guilty I believe but, contrary, set aside order to the the dismissal adequate that the evidence in this case is sufficient circuit support ruling court. Gib- Realty Company v. Intercity
This Court has held in a motion son, (1970), W.Va. 175 S.E.2d dis- addressed to the sound set aside a default dis- ruling will cretion of court and the court’s of abuse of such showing a clear turbed unless there is case, judg- default Intercity Realty discretion. In the but party neglect no fault or through ment arose inaction, and without through attorney’s rather her *16 case, and Vickers In the knowledge. present client’s action was to be known, that their knew, or have should settlement. compromise part as dismissed validity affect opinion The majority seriously will I am compromise cases. finality dismissal orders in desire attorneys for the in the future plight fearful who it casе, of a to enter into settlement since clients, settle- agreeing after to* permit ment acted of an action and after their has clients, seek to then reliance their approval aside, ruling under the the dismissal order set have R.C.P., the basis (b), Rule 60 majority applies relief, simply reason any justifying mistake other later become dissatisfied with because the clients had previously terms of the agreed. I affirmed foregoing
For reasons would County. Court Kanawha judgment of the Circuit Caplan concurs Judge I am to say authorized in this dissent. expressed views Delardas, etc. William County Monongalia County, Court West and Commis- President Ball, Virginia, John Patrick Joseph sioner, E. Melvin B. Rexroad Kun, Commissioners (No. 13156) February 22, 1972. January 12,1972. Submitted Decided Rehearing Denied March