Kerchner v. . McEachern

93 N.C. 447 | N.C. | 1885

The exceptions to the rulings of the judge, taken by the appellant, are numerous, but may be condensed, so far as they are material to our determination of the cause, into these:

(454) 1. For that the court did not adjudge that the decree could not be amended as proposed, and refuse relief.

2. For that the court found, without evidence, that there was a mutual mistake in the drawing of the decree, and that it did not carry out, in its present form, the understanding of the counsel and parties.

3. For that it was adjudged that appellant had conferred authority upon counsel to enter into and bind her by said compromise.

4. For that it was not ruled that the action was barred by the statute of limitations.

It will be noticed that the complaint does not state in precise terms the omitted and agreed matter sought to be inserted in the decree; and not more definite is the demand for relief. Its object seems to be merely to introduce a clause referring to the other papers and constituting them thereby parcel of the decree itself; and this in face of the undenied fact that the release was executed by only two of the persons whose signatures and seals it bears, and not by the order four until some time afterwards, and while it contains in its body the names of all who actually execute it, it omits the appellant's name altogether. The result contemplated in the proposed modifications is nothing less than to impose upon her the obligations voluntarily undertaken by the other plaintiffs in that proceeding.

1. We have not in our researches found any precedent which supports the present application, nor any authority for the exercise of the power invoked to amend or change a decree entered by consent against the will of any of the parties to it. There can be no question of the authority of the court to vacate or set aside a consent decree procured by fraud, as any other decree brought about by means which, in equity, call for and justify an intervention of the court for the relief of the wronged party.

"I see no reason to doubt," says Tucker, President of the Court of Appeals of Virginia, delivering the opinion in Anderson v. Woodford, 8Leigh, 328, "That an original bill will lie to set aside a decree (he is discussing a consent decree) obtained by surprise as well (455) as one obtained by fraud"; and indeed the surprise which forms a ground for equitable relief may be classed with frauds.

In Vaughan v. Gooch, 92 N.C. 524, the nature of such decrees or judgments came up for consideration, and we quoted with approval the language of Dillard, J., in Edney, v. Edney, 81 N.C. 1, where he says "a decree by consent, as such, must stand and operate as an entirety, or bevacated altogether, unless the parties by a like consent shall agree uponand incorporate into it an alteration or modification," and if a clause be stricken out, he adds, "or (as we think) if a clause be inserted therein against the will of a party, then it is no longer a consent decree, nor is it the decree of the court, for the court never made it."

And so we held in the case from which the recited extract is taken, following what was said by Gaston, J., in Wilcox v. Wilcox, 36 N.C. 36, and in other subsequent cases, "the decree is, by consent, the act of the parties rather than of the court, and it can only be modified or changed by the same concurring agencies that first gave it form," etc.

When this case was before us upon a motion to amend (McEachernv. Kerchner, 90 N.C. 177), Merrimon, J., Speaking for the Court, uses this language: "The appellant does not consent to the filing of the papers or the correction prayed for; on the contrary she refuses to do so, and assigns sundry grounds, specified in her answer to the petition, why she will not. It is very clear that the Court cannot amend the judgment. We do not intend to intimate that the defendant could not have redress by a proper action, notwithstanding this decision," manifestly having reference to the equity suggested to have the judgment put out of the way for surprise, fraud, or other sufficient cause. We are not prepared to concede that the relief here asked, which proposes not to vacate the decree and remove the obstacle which it interposes in the way of the foreclosure suit, but to amend and modify and allow it to remain when amended and modified, in full force, as a consent (456) decree among the parties.

2. But passing by this difficulty, the appellant's second exception rests upon an alleged absence of evidence to sustain the finding, or rather the conclusion drawn from the facts found, "that the failure to refer to the other papers, and make them part of the decree, was by mistake and inadvertence on the part of the counsel preparing the same, it being the intention of the counsel and parties present that the decree should embrace the whole terms of the compromise."

The testimony abundantly shows that all these papers were embraced in the agreement, and together constitute the compromise as a full and final adjustment of the matters.

The testimony of Mr. Davis and of the other counsel of Kerchner is that while "he does not recollect that there was any specific agreement that Exhibits A, B, and C" (intending Exhibits B, C, and D, as is obvious) "should be filed with the decree, but it was certainly and clearly agreed, and distinctly understood, that the decree was a compromise decree, and upon the terms set forth in the said several exhibits."

The testimony of Kerchner is substantially similar, except that he adds that these papers "were to be filed with the decree, though this may not have been expressly mentioned and agreed upon."

Examining the testimony, we do not discover that it is anywhere shown that the decree is not in the form "intended by all the parties, or that there was any mutual mistake as to provisions which were to be and are not inserted in it. It must appear that it was a common intention andunderstanding which fails to find expression in the instrument before any change can be made.

We think the objection well taken that there is no evidence that the decree should embody the matter contained in the other writings contemporaneously executed.

3. The remaining exception to be considered is to the ruling that the appellant is bound by what was done as a party on whose behalf her counsel acted in entering into the agreement.

(457) It is not necessary to discuss the question of the authority of counsel to be inferred from his appearing of record to bind the client in the manner here alleged, and which embraces matters outside the conduct and disposal of the action in which he is retained, as is ruled by the court.

The appellant did not become a party to the release (Exhibit C), nor does it seem upon its face to have been prepared for her to execute with the others. Furthermore it was shown, and so the court finds the fact to be, that her counsel said to the counsel of Kerchner that he could not guarantee that she would sign the release or, in other words, undertake to bind her to perform this part of the agreement.

While the concurring testimony is that the counsel for the plaintiffs in that suit undertook to act for all, including appellant, it was accompanied with this disclaimer of authority as to her to that extent.

We are unable to see how the legal liability of the parties would be affected by the filing of the outside papers with the decree unless by reference they become incorporated in it, and its essential conditions; and we think there was no evidence on which the court could find that such was intended to be the form of the decree, and that in consequence of a mutualmistake was left out in drafting it. We are not called upon to consider, nor do we intend to express an opinion upon the question of the legal right of the appellant to avail herself of the decree as a defense to the foreclosure proceedings, and repudiate at the same time the other parts of the one agreement which comprises the compromise as an entirety.

Our only purpose is to decide, and we only do decide, that there is error in the ruling in the present action by which the decree is sought to be itself changed in form and effect.

Upon this ground we reverse the judgment, and this will be certified to the end that a new trial be had in the court below and that the same may there be proceeded with according to law.

Error. Reversed.

Cited: Deaver v. Jones, 114 N.C. 651; McLeod v. Graham, 132 N.C. 475;Mann v. Hall, 163 N.C. 60; Simmons v. McCullen, 163 N.C. 414;Moody v. Wike, 170 N.C. 544; Morris v. Patterson, 180 N.C. 488; Walkerv. Walker, 185 N.C. 383.

(458)