166 S.E. 317 | N.C. | 1932
This is an action to recover damages for personal injury alleged to have been caused by the negligence of the defendant in 1918. The cause of injury is stated in the third paragraph of the complaint: "That on 7 December, 1918, while the plaintiff, Nathaniel Oates, at that time a child 4 years of age, was in the act of crossing Linden Street from the east to the west side, at or near the intersection of Linden and Third streets in Winston-Salem, a large truck, owned and operated by the defendant and drawn by a team of horses turned into Linden Street from Third Street, proceeding in a northwardly direction along Linden Street, and that due to the negligence of the defendant, particularly its failure to keep a proper lookout for Nathaniel Oates and other pedestrians crossing the street, and due to the recklessness, carelessness, and negligence of the driver in whipping-up the horses and in failing to have the horses under proper control, the horses and the truck suddenly and without warning ran over the body of the plaintiff, causing him to suffer excruciating pain and mental anguish and causing serious and permanent injuries to the said Nathaniel Oates as will be hereinafter more particularly set out." *476
Following this paragraph is a detailed statement of the injury and the prayer for relief.
The defendant pleaded in bar the following judgment rendered in the Forsyth County Court at the April Term, 1919, in an action entitled "Nathaniel Oates by his next friend, William Oates v. The Texas Company, Incorporated": "This cause coming on to be heard and being heard before his Honor, H. R. Starbuck, judge presiding at the April Term, 1919, of the Forsyth County Court, and it appearing to the court that the case has been compromised by the plaintiff and the defendant and that the defendant has agreed to pay the plaintiff the sum of $150, and after investigation by the court this settlement having been found to be just and reasonable:
"It is therefore ordered and adjudged: That the plaintiff recover of the defendant the sum of one hundred and fifty ($150) dollars and the costs of the action to be taxed by the clerk.
H. R. STARBUCK, Judge Presiding.
Consented to: S. J. Bennett, attorney for plaintiff. Manly, Hendren Womble, attorneys for defendant."
The plaintiff replied, alleging that the defendant in an attempt to make a settlement of the controversy entered into an agreement with the plaintiff's father, or his attorney, to pay $150 in satisfaction of all damages and arranged for the institution of a friendly suit in the name of the plaintiff's father as next friend, by which the plaintiff should receive the sum agreed on, and that judgment was entered in accordance with the agreement. It was further alleged that no evidence was offered or proof made at the trial either as to the extent of the plaintiff's injuries or as to the question whether the judgment was for the welfare of the plaintiff, and that the judgment given in the county court in 1919 is null and void. The defendant denied the reply, and when the cause came on for trial the judge of the county court being of opinion that the former judgment is a bar dismissed the action. On appeal the Superior Court reversed this judgment and remanded the cause for trial. The defendant excepted and appealed. In the county court, at April Term, 1919, the plaintiff, who appeared in the cause by his father as next friend, recovered a judgment for the injury complained of in the present action, and on 20 *477 May his attorney signed and filed a receipt for $156.70 in full payment of the principal and costs. By his mother as next friend he brought the pending suit on 6 July, 1931, and now prays judgment for additional damages alleged to have resulted from his injury. The defendant answered, pleading in bar the judgment of the county court, and the plaintiff filed a reply in which he challenged the validity of the former judgment. In his reply he alleged that this judgment is void and not binding in any way, but in his brief he seems to treat it as voidable.
Of course a party may attack a judgment for fraud by an independent action, but he must set forth facts and circumstances by which the court may finally determine whether fraud is sufficiently alleged; and in this respect the plaintiff's pleading, we think, is defective. He frankly disavows any fraudulent conduct on the part of counsel who participated in the former proceeding and none is charged against the defendant. The only color of fraud is the allegation that if the judgment binds the plaintiff he will be deprived of his rights and damages to the extent of $25,000. It is insisted, however, that the action should be treated as a motion in the cause and that the judgment should be set aside for irregularity. We prefer to rest our decision upon the merits of the controversy and not upon a technicality in procedure.
The plaintiff makes his contention upon the settled principle that where issues are joined in an action between an infant and an adverse party and no evidence is introduced at the hearing, it merely appearing that an agreement is made by the parties that judgment be entered by consent, the judgment will not be binding upon the infant. To support this position the plaintiff cites several cases to which brief reference may be made. The proposition just stated is clearly set out in Ferrell v. Broadway,
In the case before us the facts are easily distinguishable. Here the judgment recites an investigation by the trial court and a finding that the settlement was just and reasonable. If "just and reasonable" the compromise was not prejudicial to the infant. To assail the judge's finding without allegation and proof of fraud would be equivalent to an impeachment, not of irregularity in the procedure, but of the essence of the judgment — a denial of the specific act which the court declares it performed. We should be reluctant to concede that the verdict of a jury, after the lapse of twelve years, can supersede the solemn adjudication of the trial judge concerning a judicial matter peculiarly within his own experience. In the absence of fraud his finding is conclusive, even if it should be granted that without an investigation of the facts the consent judgment might have been deemed "colorable and collusive."
The appellee suggests that there is no record or recital of an appointment of a next friend for the plaintiff in the first action. There was an allegation in the complaint that William Oates had been duly appointed as his next friend. But if not duly appointed, as was said inTate v. Mott,
Reversed.
