Howard v. Boyce, 30

• Decision Date: 22 March 1961
• Docket Number: No. 30,30
• Citation: 254 N.C. 255,118 S.E.2d 897
• Parties: Frances Badham HOWARD, Fannle Badham, Bessle B. Small, Sidney Badham, Miles Badham, Penelope Overton, Alexander Badham, Charity Badham, Charles Badham, Pauline B. Turner, Frank Badham, Sadie B. Hawkins, James Badham, and all other Heirs at Law of Hannibal Badham, Deceased, v. Lonnie BOYCE.
• Court: North Carolina Supreme Court

Page 897

118 S.E.2d 897

254 N.C. 255

Frances Badham HOWARD, Fannle Badham, Bessle B. Small Sidney Badham, Miles Badham, Penelope Overton, Alexander Badham, Charity Badham, Charles Badham, Pauline B. Turner Frank Badham, Sadie B. Hawkins, James Badham, and all other Heirs at Law of Hannibal Badham, Deceased, v. Lonnie BOYCE.

No. 30

Supreme Court of North Carolina.

March 22, 1961

Samuel S. Mitchell, Raleigh, R. Conrad Boddie, Rocky Mount and Chance, Mitchell & Wells, New York City, for movants, appellants.

Weldon A. Hollowell, Edenton, and Pritchett & Cooke, Windsor, for defendant.

MOORE, Justice.

Appellants seek to set aside the judgment of 13 July 1945 on the grounds that they did not consent thereto, did not authorize the attorney of record to appear for or represent them, and had no knowledge of the judgment prior to its entry.

The court below found as a fact that appellants (movants) have no meritorious cause of action and have been guilty of laches and unreasonable delay. It declined to set aside the judgment.

In the affidavits supporting the motion, movants asserted that they were made parties plaintiff to the 1944 action without their knowledge and consent, did not employ or confer with the attorney of record, and did not authorize him to act for them. They further declared that the compromise and settlement of the matters in controversy and the entry of the judgment were without their knowledge, authority or consent.

'* * * (T)he early rule followed both in England and in this country was that * * * an unauthorized appearance (by an attorney) conferred jurisdiction over the party thus represented and that his only remedy after judgment was an action or other proceeding against the attorney, unless the latter were insolvent.' Freeman on Judgments (5th Ed.), Vol. 1, § 231, p. 456.

Chancellor Kent stated the early rule in Denton v. Noyes, 6 John., 295, in these words: 'An attorney of this court appears for the defendant to a writ, which had been sued out, but not served, and he, afterwards, confesses judgment. * * * If the attorney has acted without authority, the defendant has his remedy against him; but the judgment is still regular, and the appearance entered by the attorney, without warrant, is a good appearance, as to the court.' He continues: '(I)f the attorney for the defendant be not responsible, or perfectly competent to answer to his assumed client they would relieve the party against the judgment, for otherwise a defendant might be undone.' But the Chancellor disagreed with the rule, stating: 'I am willing to go still further, and in every such case, to let the defendant into a defence to the suit. To carry our interference beyond this point, would be forgetting that there is another party in the cause, equally entitled to our protection.'

The early rule above stated was first adopted in England. Alleley v. Colley (1624), Cro.Jac. 695, 79 Eng.Reprint, 603; Anonymous case (1703), 1 Salk. 88, 91 Eng. Reprint, 82; Anonymous case (1698), 1 Salk. 86, 91 Eng.Reprint, 81. But the court did not adhere to this rule in Robson v. Eaton (1785), 1 T.R. 62, 99 Eng.Reprint, 973. It was definitely abrogated in Bayley v. Buckland (1847), 1 Exch. 1, 154 Eng. Reprint, 1, where a defendant who was not served with process and had no notice of the action was held entitled to have set aside a judgment based on unauthorized appearance by an attorney in his behalf. The attorney was solvent and responsible.

The modern rule, according to the overwhelming weight of authority in this country, is: 'A defendant against whom a judgment is rendered without service of process upon him, based on an appearance on his behalf by an attorney who was not employed by him and had no authority to enter his appearance, is entitled to show such want of authority and to be relieved against the judgment on that ground, in a direct proceeding instituted for the purpose.' 88 A.L.R., Anno.--Judgment--Validity--Unauthorized Appearance, 3. III a, p. 30. If the record discloses lack of authority, the judgment may be collaterally attacked. Ibid, § III b, p. 41. But collateral attack is not permitted if the judgment is valid on its face. In such case, the proper procedure for relief is a motion in the cause in the court in which the unauthorized appearance is entered. Ibid, § III c, p. 41. Conduct amounting to acquiescence and ratification, or unreasonable delay in moving to set aside the judgment, where such conduct or delay has been prejudicial to the rights of adverse parties or innocent third parties, is equivalent to an original grant of authority and will bar relief. Ibid., § VIII, pp. 62-68.

The more recent North Carolina cases substantially embrace the modern majority view. But this Court has run the gamut of rule modification. As a result we find many inconsistencies in the opinions in this jurisdiction.

The early rule was applied by this Court in a number of cases during a relatively recent period. Chadbourn v. Johnston, 1896, 119 N.C. 282, 25 S.E. 705, 706; University of North Carolina, trustees v. Lassiter, 1880, 83 N.C. 38. The Chadbourn case applied the early rule without qualification. There, movant was not served with summons, but the sheriff's return showed service on him. An unauthorized appearance was made by attorneys in his behalf, and judgment against movant was entered by agreement of counsel. Motion to set aside the judgment was allowed in the lower court. This Court reversed, saying: '* * * (O)ne of * * * attorneys * * * is found to be 'amply solvent.' And it has been held by this court that where this is the case the court will not set aside the judgment otherwise regular.'

The more liberal views of Chancellor Kent gained approval in Gardiner v. May, 1916, 172 N.C. 192, 89 S.E. 955, and Ice Manufacturing Co. v. Raleigh & A. Airline R. R., 1899, 125 N.C. 17, 34 S.E. 100.

Under certain circumstances it was held that judgments entered as a result of unauthorized appearance or consent of counsel could not be set aside or modified except on the ground of mutual mistake or fraud. The theory was that neither the courts nor other parties could look behind such acts on the part of attorneys to inquire into their authority or the extent and purport of clients' instructions--especially when innocent third parties would be prejudiced thereby. Williams v. Johnson, 1893, 112 N.C. 424, 17 S.E. 496, 21 L.R.A. 848; England v. Garner, 1884, 90 N.C. 197; Stump v. Long, 1881, 84 N.C. 616. As to the authority and liability of attorneys in their relationships with clients, see Gardiner v. May, supra.

However, certain principles, applicable to cases such as the one under consideration, now appear to be well settled.

It is generally held that, where a court has entered judgment against a party without having acquired jurisdiction, either by failure to serve process upon him or because of the institution of a suit entirely without authority, relief may be obtained by motion in the cause at the same or a subsequent term, provided there has been no ratification, laches or other interfering principle. If this lack of jurisdiction appears upon the face of the record, the judgment may be treated as a nullity when and wherever relied upon and is subject to collateral attack; but where a party, by unauthorized act of an attorney, appears of record as plaintiff, it is necessary that relief be obtained by motion in the cause. Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Hatcher v. Faison, 142 N.C. 364, 55 S.E. 284; Doyle v. Brown, 72 N.C. 393.

Our most recent case of unauthorized appearance by attorney is Owens v. Voncannon, 251 N.C. 351, 111 S.E.2d 700, 702. There movant sought to set aside a judgment entered by the unauthorized consent of counsel. Movant had been duly served with summons and the attorney had filed answer in her behalf. The answer had been verified by another. She alleged that the attorney had not been employed by or authorized to act for her. The Court declared:

''The power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto; and the judgment is void if such consent does not exist at the time the court sanctions or approves the agreement and promulgates it as a judgment.' King v. King, 225 N.C. 639, 641, 35 S.E.2d 893. Moreover, when a purported consent judgment is void because the consent is by an attorney who has no authority to consent thereto, the party for whom the attorney purported to act is not required to show a meritorious defense in order to vacate such void judgment. Town of Bath v. Norman, 226 N.C. 502, 505, 39 S.E.2d 363, and cases cited.

'True, a judgment bearing the consent of a party's attorney of record is not void on its face. Indeed, it is presumed to be valid; and the burden of proof is on the party who challenges its invalidity. Gardiner v. May, supra. But if and when, absent ratification by the party, the court finds as a fact that the attorney had no authority to consent thereto, the essential element upon which its validity depends is destroyed.'

Where the action or proceeding is regular on its face but the attorney was in fact not authorized to institute the action, bind the party, or consent to judgment, the judgment is at least voidable. An attorney has no inherent or imputed power or authority to compromise his client's cause or consent to a judgment which gives away the whole corpus of the controversy. Town of Bath v. Norman, supra. To compromise his client's cause or enter a consent judgment with respect thereto, an attorney must be so authorized. But 'when a compromise has been made and formally embodied in a court judgment, it is presumed to have been rightfully entered until the contrary is made to appear, and one who undertakes to assail such a judgment has the burden of making good his impeaching averments to the satisfaction of the court.' Chavis v. Brown, 174 N.C. 122, 93 S.E. 471, 472

Unless procured by fraud or mutual...