Howard v. Boyce, 27

• Decision Date: 02 March 1966
• Docket Number: No. 27,27
• Citation: 146 S.E.2d 828,266 N.C. 572
• Court: North Carolina Supreme Court
• Parties: Frances Badham HOWARD et al., Petitioners, v. Lonnie BOYCE, Respondent.

Page 828

146 S.E.2d 828

266 N.C. 572

Frances Badham HOWARD et al., Petitioners, v. Lonnie BOYCE, Respondent.

No. 27.

Supreme Court of North Carolina.

March 2, 1966.

Pritchett, Cooke & Burch, Windsor, for respondent.

RODMAN, Emergency Judge.

In October 1944 a summons issued out of the Superior Court of Chowan County in an action captioned as above. The complaint, verified by Frances Badham Howard, alleged: The heirs at law of Hannibal Badham, Sr., were the owners of a tract of land in Chowan County containing 319 acres; those named as plaintiffs were the heirs at law of Lannibal Badham, Sr.; the defendant Boyce asserted title to said land; his claim of title cast a cloud on their good title. The complaint concluded with a prayer that those named as plaintiffs be adjudged the owners of the land free from any claim by defendant.

Defendant within the statutory time answered and denied plaintiffs' claim of ownership.

On July 13, 1945, the Clerk of the Superior Court, with the consent of counsel of record for plaintiffs and defendant, entered a judgment dismissing the action as upon nonsuit. The adjudication was based on recitals in the judgment that the parties had settled all material matters in controversy and 'that plaintiffs disclaim any further interest' in said controversy.

In 1959 Penelope Overton and others instituted an action in the Superior Court of Chowan County again asserting they were the owners of the 319 acres described in the action begun in 1944; that defendant Boyce was in possession, claiming to be the owner; his claim constituted a cloud on their title. Boyce answered denying plaintiffs' asserted title. As an additional defense, he pleaded the judgment rendered in the action begun in 1944. At the trial, Judge McLean held the plea in bar good. He dismissed the action. Plaintiffs appealed. This Court affirmed in an opinion filed 24 February 1960. Overton v. Boyce, 252 N.C. 63, 112 S.E.2d 727.

On August 10, 1960 Penelope Overton made a motion in the cause to vacate the judgment rendered in 1945, for that counsel purporting to represent plaintiffs were without authority to speak for her. Movant's brother, Alexander Badham, joined in the motion and likewise sought to vacate the judgment rendered in 1945. That motion was heard by Bone, J., at the September Term 1960.

Movants offered evidence to the effect that they had not authorized counsel to act for them in instituting the 1944 action nor in consenting to a judgment reciting that matters in controversy had been adjusted. Movants testified that they knew nothing of the institution of the action or the rendition of the judgment until sometime subsequent to 1945.

The court made no finding with respect to the authority of counsel to institute the action for movants or to consent to the judgment. It found that movants had not challenged the authority of counsel of record until the filing of the motion on August 10, 1960; that they had failed to show a meritorious claim and were guilty of laches. Based on his findings he denied the motion. Movants appealed. The appeal was heard at the Spring Term 1961 of this Court. The opinion, filed 22 March 1961, is reported 254 N.C. 255, 118 S.E.2d 897. Justice Moore, speaking for the Court, discusses at length the law applicable to rights asserted by movants and the defenses of laches and want of merit. In concluding his opinion, he said:

'The primary question for the court below was whether or not the attorney of record had authority from appellants to compromise and settle the matters in controversy and approve a judgment in retraxit disclaiming on their behalf any right, title or interest in the land in question. There are no findings of fact determining this question. The judgment does not purport to determine this question. The cause must be remanded for this determination and for decision on all other related questions raised. Columbus County v. Thompson, 249 N.C. 607, 107 S.E.2d 302.

'On the question of laches the record before us shows nothing more than considerable lapse of time and is insufficient to support the finding 'that the movants have been guilty of laches and unreasonable delay.' A further showing on this phase may be made when the motion is again heard.'

On remand to the Superior Court for findings and conclusions based thereon as directed in the opinion of Moore, J., Judge Parker, presiding over the May Term 1961, found inter alia:

'FIFTH: That no person, other than Frances Badham Howard, named as plaintiffs, authorized Mr. J. W. Jennette, Attorney, to represent him, her or them, in the action commenced on October 26, 1944, and purportedly concluded by judgment before the Clerk of the Superior Court of Chowan County, dated July 13, 1945.

'SIXTH: That Frances Badham Howard authorized and understood the prosecution of the action purportedly determined by judgment before said Clerk of the Superior Court of Chowan County, dated July 13, 1945, to have proceeded upon the theory of sole ownership and right to possession in her under a paper writing, allegedly a deed to her father, Hannibal Badham, Jr., and under a paper writing, allegedly a testamentary devise from Hannibal Badham, Jr., her father, to her, the said Frances Badham Howard, and that she had no authority to authorize, nor did she authorize said action on behalf of any other heir or heirs of Hannibal Badham, Sr., her grandfather.

'SEVENTH: That no additional evidence on the question of laches has been offered by respondents.'

Based on his findings, he concluded:

'That no person, other than Frances Badham Howard, is bound by the judgment taken before the Clerk of the Superior Court of Chowan County, dated July 13, 1945.'

It was thereupon adjudged that the 'judgment in this cause entered before the Clerk of the Superior Court of Chowan County on July 13, 1945, in respect to all parties plaintiff, other than Frances Badham Howard or Mrs. Martin L. Howard, be, and the same is HEREBY SET ASIDE.'

Frances Badham Howard appealed from that portion of the judgment adjudging her bound by the judgment rendered by the Clerk in 1945. That appeal was heard at the Fall Term 1961. We remanded the case to the Superior Court for modification because the only parties then before the court were movants Penelope Overton and Alexander Badham and defendant Boyce. We said:

'The court, on the findings made, correctly adjudged that the judgment rendered in 1945 was not binding on movants Overton and Badham. That was the only question it was called upon to decide. It exceeded its jurisdiction by adjudging rights of parties not before it and not seeking its aid.'

The Superior Court at the April Term 1962 rendered judgment in conformity with the opinion reported in 255 N.C. 712, 122 S.E.2d 601. The judgment then rendered has not been challenged by appeal.

The legal principles enunciated in Overton v. Boyce, 252 N.C. 63, 112 S.E.2d 727, and Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897; 255 N.C. 712, 122 S.E.2d 601, are the 'law of the case.' They control our decision on this appeal. Epitomized, they are:

1. No defect appeared of record in the action begun in 1944. The validity of the judgment rendered in 1945 could only be challenged by motion in the cause. Overton v. Boyce, 252 N.C. 63, 112 S.E.2d 727.

2. Any person specifically named as party plaintiff in the 1944 action could challenge the judgment entered in 1945 upon establishing (1) that he had not employed counsel or otherwise authorized the institution of the action, or (2) having employed counsel and authorized the institution of the action, he had not authorized his counsel to enter a judgment of retraxit. Whether parties not so bound would be barred by laches, ratification or estoppel, would depend upon the facts found. Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897.

3. No judgment could be entered affecting the 1945 judgment except on motion of one named as a party or successor in interest to such party. Howard v. Boyce, 255 N.C. 712, 122 S.E.2d 601.

More than three years...