Gardner v. May (State Report Title: Gardiner v. May)

• Decision Date: 11 October 1916
• Docket Number: 181.
• Citation: 89 S.E. 955,172 N.C. 192
• Parties: GARDNER v. MAY. [*]
• Court: North Carolina Supreme Court

89 S.E. 955

172 N.C. 192

GARDNER v. MAY. ^[*]

No. 181.

Supreme Court of North Carolina

October 11, 1916

Clark C.J., dissenting.

Appeal from Superior Court, Pitt County; Lyon, Judge.

Action by Henrietta Gardner against J. J. May, administrator of the estate of Walter Gardner, deceased. Defendant's motion to set aside a judgment entered by consent of the parties was denied, and he appeals. Affirmed.

A consent judgment cannot be changed, altered, or set aside without consent of the parties, unless it appears that it was obtained by fraud, mutual mistake, or that the consent was not in fact given.

Walter Gardner died in 1912, leaving the following will:

"Ayden N. C., Aug. 13, 1909.

If, I Walter Gardner, were to die after this date, it is my will that everything I have shall be divided equally between my wife and my mother for their lifetime, and then to go to my son, Wilbur, if he lives, but if he dies, then to my brother, Isaac. This refers to the money that will come to my estate from the Prudential Insurance Co., as well as what property I now have.

Walter Gardner."

J. J. May, the defendant, qualified as administrator of Walter Gardner. When the will was produced, the said J. J. May qualified as administrator with the will annexed, and allotted to the widow of the testator a year's support. This action was then brought by the plaintiff, mother of the testator, for the half of the personal property bequeathed to her in the will. The cause came on to be heard at May term, 1916, before Judge Whedbee, when the following judgment was entered:

"It is now ordered, adjudged, and decreed that the plaintiff recover of the defendant one-half of the sum of $400, being the year's provisions allotted, and one-half of the sum of $75, the excess value of the two horses, to wit, the sum of $237.50, after deducting one-half of the cost of this action, and in addition thereto it is further adjudged that the plaintiff is entitled to the sum of $21.51, which has been paid into the clerk's office. And it is further ordered that the cost of this action be taxed one-half against the plaintiff and one-half against the defendant, and after paying said cost the defendant is hereby directed to pay over the recovery herein to the plaintiff, or her attorney.

H. W. Whedbee, Judge Presiding."

The judgment above set forth was, as appears by the record, entered by consent of the parties, through their attorneys. At August term, 1916, defendant moved to set aside the judgment upon the ground that neither the parties, nor their attorneys for them, had the power by consent to enter a judgment by which the corpus of the personal estate could be turned over to the plaintiff, as owner of one-half of the life estate, without securing the remainderman against loss by any default of delinquency on her part, from waste or otherwise. There was no allegation of fraud, and none of mistake, except the one that when defendant consented to the judgment he inadvertently overlooked the error in law, which consisted in not providing for the security of the remainderman against loss. This motion was heard by Judge Lyon at August term, 1916, when he denied the motion. No facts were found by Judge Lyon, and, so far as appears from the record, he was not requested to find and state the facts. Defendant appealed.

F. M. Wooten, of Greenville, for appellant.

Harry Skinner and L. G. Cooper, both of Greenville, for appellee.

WALKER, J. (after stating the facts as above).

As the judge was not requested to state the facts, we must assume that he found such facts as would support his judgment, as we do not presume that there was error in the judgment, but the contrary. McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4; Pharr v. Railroad Co., 132 N.C. 418, 423, 44 S.E. 37, and cases therein cited. If the defendant was not alert and careful of his own interests, it was not the fault of the plaintiff, and she should not be made to suffer for his inattention. She denies that there was any mistake of law or fact, and alleges that defendant fully considered the decree after it had been submitted to him, and he had time to do so with the aid of counsel, and, further, that he fully and voluntarily agreed thereto after such examination of the judgment and deliberation as to its effect. We must assume that the judge adopted these as the facts in the absence of a specific finding to the contrary. Pharr v. Railroad Co., supra; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Albertson v. Terry, 108 N.C. 75, 12 S.E. 892; Smith v. Whitten, 117 N.C. 389, 23 S.E. 320. It was decided in Carter v. Rountree, supra, as appears by the fifth headnote, that:

"Upon a motion to vacate a judgment it is not required of the court to set forth its finding of the controverted facts upon the record, unless a request to that effect is made by some of the parties to the proceeding, when it would be error to refuse the request." McLeod v. Gooch, supra.

We do not consider affidavits for the purpose of finding the facts ourselves in motions of this sort. Osborn v. Leach, 133 N.C. 428, 45 S.E. 783.

This brings us to the next and last question in the case, as to the nature and legal effect of a consent judgment. Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud, or mutual mistake, or that consent was not in fact given, which is practically the same thing; the burden being on the party attacking the judgment to show facts which will entitle him to relief. Edney v. Edney, 81 N.C. 1; Stump v. Long, 84 N.C. 616; McEachern v. Kerchner, 90 N.C. 179; Vaughan v. Gooch, 92 N.C. 527; Lynch v. Loftin, 153 N.C. 270, 69 S.E. 143; Simmons v. McCullin, 163 N.C. 409, 79 S.E. 625, Ann. Cas. 1915B, 244; and Harrison v. Dill, 169 N.C. 542, 86 S.E. 518, where the subject is fully considered and the authorities reviewed. Justice Dillard said in Edney v. Edney, supra:

"A decree by consent as such must stand and operate as an entirety or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification. If a clause be stricken out, against the will of a party, then it is no longer a consent decree, nor is it a decree of the court, for the court never made it."

"There can be no doubt that a judgment entered up by the court, upon the agreement of parties, is, to say the least, as conclusive upon them as if judgment were rendered in the ordinary course of proceeding." Pelton v. Mott, 11 Vt. 148, 34 Am. Dec. 678.

While the terms are settled by the parties, the judgment has the same force and effect as if it had been entered by the court in regular course, and, in that sense, it becomes the judgment of the court, by virtue of its sanction in receiving it and ordering that it be spread upon its records. McEachern v. Kerchner, 90 N.C. 179; Simmons v. McCullin, supra. This is the settled law, as shown by many of our decisions. Vaughan v. Gooch, supra. If this be so, defendant has no ground upon which to rest his motion. There is no finding that there was fraud or mistake, or want of authority in the attorney, and it is not denied that the judgment, as entered, and in form, was by consent.

It is suggested that the burden of proof was upon the plaintiff to establish that the consent judgment was entered by the defendant's attorney with the authority of his client, or, in other words, that he was duly empowered to give the defendant's consent to the judgment. The law is to the contrary. The general management of a suit is committed to the attorney, and he has a very extensive authority, which springs mainly from his general retainer. He has the free and full control of a case, in its ordinary incidents, and as to those incidents is under no obligation to consult his client. In important matters, however, he should do so, and take his client's instructions. He is likewise under obligations to render an account when desired. As the client is bound by the attorney's acts, if there is no collusion with the opposing party, the client can have redress in case of injury from the attorney alone. The attorney may exercise his discretion in all the ordinary occurrences which take place in a cause, and may make stipulations, waive technical advantages, and generally assume the control of the action. Weeks on Attorneys at Law, p. 385 et seq.

A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence, or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principle were different. The authorities which support this view are very numerous, and, as the question is an important one, we will refer to a few of them. Speaking of consent and confessed judgments, it is stated by a text-writer that:

"The prevailing view seems to be that the power of an attorney to confess judgment for his client is implied, though some disinclination to follow this rule has been shown. In every case, however, the record of the judgment would be prima facie evidence that the attorney who confessed it was properly authorized. It has also been held that an attorney may, by virtue of his employment, consent to a decree in behalf of his client." 4 Cyc. 936.

As sustaining this prevailing view, he cites, among other authorities, Hairston v....