175 N.C. 426 | N.C. | 1918
Lead Opinion
It follows as a matter of course that the judgment cannot be set aside as to defendant Bass, as he was present in court and personally consented to it.
We are also of opinion that the court properly refused to set it aside as to Adams.
1. Adams and Bass were copartners and had employed most reputable counsel to conduct their defense. The copartner Bass was entrusted by the firm with the management of the action. The complaint alleged a cause of action in contract, a simple indebtedness, and another cause of action in tort, embezzlement and willful misappropriation of plaintiff’s property by the copartnership.
When the case was called for trial the counsel for defendants permitted judgment to be entered for the debt, the allegation of embezzlement having been withdrawn. The managing partner being present in court, consented to this.
But consenting to the judgment was not really the act of counsel, but that of the managing partner, who was present directing their action and that is binding on Adams.
2. The burden of proof was on Adams to satisfy the judge that he did not consent to the judgment, and he has failed to offer sufficient evidence.
The law presumes the attorneys had the necessary authority and the burden is on the-party seeking to set aside a consent judgment to prove that no such authority existed. Gardiner v. May, 172 N. C., 192.
3. The defendants have been guilty of great laches in making their motion. The judgment was rendered in May, 1910. The summons was served personally on both partners. It is claimed by Adams that he did not know of the rendition of the judgment until 1917. He knew of the pendency of the action and that his partner was supervising and attending to its defense. He is guilty of laches in not inquring as to its disposition. He is charged with such knowledge as an inquiry would have disclosed. He cannot he permitted to wait nearly eight years and then say that he did not know that his suit had ended in a judgment against him. Besides, as his partner was acting for the firm, he is charged with such knowledge as his partner had.
Affirmed.
Concurrence Opinion
concurring: The conclusion of the Court is, in my opinion, correct, but‘the reference to Hairston v. Garwood, 123 N. C., 345, in the connection it is placed, may seem to go beyond what that case decides. There the defendant asked to set aside the judgment as being irregular and as taken on account of his excusable neglect. The presiding judge merely held that it was not irregular, and refused to set it aside, and that ruling was affirmed on appeal, but the learned justice who wrote the opinion of this Court said: “If the judgment had shown upon its face that it had been entered as the result of a compromise made by the attorney, and that the judgment had been entered by his consent, the question would be a very different one from the one presented by this record. That question is not before us, and we need not discuss it. On the subject, however, the case of Moye v. Cogdell, 69 N. C., at p. 95, may he read with interest.” In Moye v. Gogdell, supra, the Court held as shown by the headnote, that “An attorney cannot compromise his client’s case without special authority to do so, nor can he, without such
There is a presumption that an attorney has the requisite power to act where a judgment is taken against his client (Gardner v. May, 172 N. C., 192), for having the apparent authority, the law will not presume that he has committed a wrong and acted without the actual authority. We said in Harrill v. R. R., 144 N. C., 543: “The counsel who signed the case agreed in behalf of the defendant was actually its attorney at the time, and representing it in this case at the term of the court when the case was settled. He had, apparently, all the authority necessary to act in the premises, and because he failed to observe special private instructions as to the manner of defending the suit is no reason in our opinion, under the circumstances of this case, why the judgment should be set aside, as he appeared to be clothed with general authority to act for the defendant. Greenlee v. McDowell, 39 N. C., 485; Branch v. Walker, 92 N. C., 89; Beck v. Bellamy, 93 N. C., 129; Weeks on Attorneys, sec. 222; Rogers v. McKenzie, 81 N. C., 164.” And this authority to act for his client extends to and embraces all things done within the scope of his authority, as held in Westhall v. Hoyle, 141 N. C., 337. The presumption that he has acted within the limit of his authority will be indulged, even where he agrees to a compromise or settlement of his client’s interests, in the absence of evidence to the contrary.
In this case there was previous consent by the clients to what was done. The firm was represented by one of the copartners, who was clothed with full power to act in the matter for the partnership and, of course, his consent, which was given to the attorneys, clothing the latter with the necessary authority to act, as they did, in agreeing to the judgment.
So that, however derived, the power existed, and the action of the attorneys was fully justified.
I am rather inclined to the opinion that in this case the attorneys were exercising their ordinary authority in the course of the litigation, and not surrendering, sacrificing, or even compromising any right of their client. It was a chance between evils, or the selection of chances, and they properly chose the lesser of the two in the one case, and the less hazardous of the two in the other, by eliminating the fraud, which was the dangerous element, and letting judgment go by default for the debt, as it does not appear that their client had any real or meritorious de