Elliott v. Elliott

• Decision Date: 17 May 1937
• Docket Number: 11686.
• Citation: 191 S.E. 465,184 Ga. 417
• Parties: ELLIOTT v. ELLIOTT.
• Court: Georgia Supreme Court

191 S.E. 465

184 Ga. 417

ELLIOTT v. ELLIOTT.

No. 11686.

Supreme Court of Georgia

May 17, 1937

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Action by Katie Elliott against J. J. Elliott, wherein defendant filed a demurrer.

To review a judgment dismissing the action, plaintiff brings error.

Affirmed.

Syllabus by the Court.

1. A consent verdict and decree resulting from an agreement of compromise between the attorneys of the parties will not be set aside in equity for want of authority of the attorney for one of the parties to enter into such agreement, or for fraud that is not attributable to the opposite party.

2. Allegations that the defendant's attorney was unauthorized by the petitioner to enter into the agreement resulting in the consent verdict and decree, and that the verdict was without her knowledge and consent rendered in her absence caused by instruction from her attorney to wait at his office until she should be needed in court, do not charge fraud perpetrated by the defendant, or ground for setting aside the consent verdict and decree.

F. E. Radensleben and J. Mallory Hunt, both of Atlanta, for plaintiff in error.

Etheridge Belser & Etheridge, of Atlanta, for defendant in error.

ATKINSON Justice.

In a suit by a husband for divorce and cancellation of certain instruments whereby the husband had transferred property to the wife, a first verdict for divorce was rendered. The case came on for final trial at a subsequent term. At that trial the attorneys for the respective parties on October 17, 1935 entered into an agreement and caused to be taken a consent verdict and decree for cancellation as prayed, granting a total divorce between the parties, and removing their disabilities to marry. After that term, on May 18, 1936, the wife brought in the same court an equitable action returnable to the July term, to cancel the final verdict and decree. The petition alleged substantially all that is stated above. It was particularly alleged that on the morning of the third day of the trial the wife called at the office of her attorney for the purpose of accompanying him to the court and resuming the trial; that the attorney 'instructed her to remain in his office, and * * * he would go to the court-room and from there call her when she was needed'; and that in a short time he returned and informed her that a consent verdict had been taken, and stated the terms. In paragraph 8 it was alleged: 'Petitioner shows that her attorney and the attorneys for the defendant had agreed by and among themselves as to the disposition of petitioner's property rights and to said verdict and judgment embodying said agreement.' In paragraph 9 it was alleged: 'That her attorney entered into said agreement without her knowledge and consent and without her authority; that the first she knew thereof was when she was informed by her attorney that such verdict and judgment had been taken.' In paragraph 10 it was alleged: 'Petitioner shows that she employed her attorney under a general retainer, and that she had not clothed him with authority to settle said case in the manner aforesaid, or with authority to make said compromise or to agree to the said verdict and decree; and that she at no time has ratified said verdict and judgment.' In paragraph 11 it was alleged: 'Petitioner charges that the agreement of her attorney and the attorneys for the defendant to said consent verdict and judgment under the facts hereinabove alleged constituted a fraud, constructive in nature, on your petitioner under the laws of Georgia; that it was a perpetration of a fraud upon your petitioner; and that said consent verdict and judgment are fraudulent, null and void, and subject to be vacated and set aside by a court of equity.' The exception is to a judgment dismissing the action on general demurrer to the petition.

1. It was held in Adkins v. Bryant, 133 Ga. 465, 66 S.E 21, 134 Am.St.Rep. 211: 'A verdict and judgment rendered with the consent of counsel is binding upon the client, in the absence of fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered.' See, also, Williams v. Simmons, 79 Ga. 649, 7 S.E. 133; Wilbanks v. Wilbanks, 159 Ga 196, 125 S.E. 202. In Lanier v. Nunnally & Co., 128 Ga. 358, 57 S.E. 689, it was held: 'While equity has jurisdiction to set aside a judgment obtained through the perpetration of a fraud, it must be made to appear, in an application made for this purpose, that the fraud was perpetrated by the adverse party, or his counsel or agents.' See, also, Gray v. Georgia...