National Bread Co. v. Bird

• Decision Date: 12 January 1933
• Docket Number: 6 Div. 213,213-A.
• Citation: 226 Ala. 40,145 So. 462
• Parties: NATIONAL BREAD CO. v. BIRD (TWO CASES.
• Court: Alabama Supreme Court

145 So. 462

226 Ala. 40

NATIONAL BREAD CO. v. BIRD (TWO CASES.

6 Div. 213, 213-A.

Supreme Court of Alabama

January 12, 1933

Appeal from Circuit Court, Jefferson County; Richard V. Evans Judge.

Separate suits for damages by Roberta Bird and by O. N. Bird against the National Bread Company. From orders granting plaintiffs' motions to vacate judgments in their favor defendant appeals and applies for alternate writs of mandamus.

Appeals dismissed; mandamus denied.

Coleman Spain, Stewart & Davies, of Birmingham, for appellant.

London Yancey & Brower and Jim C. Smith, all Birmingham, for appellees.

BROWN J.

By agreement of the parties, two appeals are embodied in one record. One of the suits is by the wife against the appellant for personal injuries received on October 27, 1931, in an automobile collision alleged to have been proximately caused by the negligence of the defendant, and in which she claimed $25,000 as damages. The other is by the husband for property damage to the plaintiff's automobile, and for loss of the wife's services in consequence of her injuries. Both suits were filed on November 3, 1931, and service was perfected on the defendant on November 7, 1931. The defendant appeared and filed demurrers to the complaints on December 4, 1931, and on January 6, 1932; a judgment by consent was entered in the wife's case for $500, and in the husband's case for $150.

On February 3, 1932, the plaintiffs each filed a motion to set aside and vacate the judgment, the wife alleging as grounds therefor that she did not authorize the filing of the suit, nor did she authorize any settlement of her cause of action, and that said judgment was entered as by agreement without her authority or knowledge; the husband alleging, as grounds for his motion, that said judgment by agreement was entered without his knowledge, and that his attorney who consented thereto had no authority to compromise his cause of action.

The motions were presented to the presiding judge of the court on the date of their filing, and were set for hearing on February 20, 1932, at which time they were heard on evidence given ore tenus, and the court entered in each case the following order: "It is ordered and adjudged by the court that this motion be and the same is hereby granted, judgment set aside and cause reinstated to the docket; and it is further ordered, adjudged and decreed that Fred Fite has an attorney's lien upon the cause of action to the extent of one-third of the recovery herein, and defendant excepts."

It is well settled that an order made by the circuit court, in the exercise of its plenary power, granting or denying a motion to set aside a judgment rendered in an action pending in said court, other than a motion for new trial where there has been a trial on the facts, will not support an appeal. Ex parte Gay (Sovereign Camp, W. O. W. v. Gay) 213 Ala. 5, 104 So. 898; Gibson v. Farmers' Bank of Luverne, 218 Ala. 554, 119 So. 664; Mosaic Templars of America v. Hall, 220 Ala. 305, 124 So. 879. The appeals must therefore be dismissed.

The appellant, anticipating the dismissal of the appeals, has submitted, in the alternative, in each case a motion for the issuance of a writ of mandamus to compel the vacation of said orders.

The first contention on this phase of the case is "that the overwhelming weight of the evidence shows that" the attorney who brought the suits "did have authority to compromise the cases." While it may be conceded that there is some conflict in the evidence on this point, it is our judgment that the great weight of the evidence shows no express authority on the part of plaintiffs' attorney to compromise the cause of action, and the plaintiffs were in no way consulted about the settlements that were made, and had no knowledge thereof until the judgments were entered. We are therefore not of opinion that the court can be put in error, for the reason that his conclusion and judgment is not supported by the evidence.

The next contention is that the great weight of authority supports the view that a judgment rendered in open court by agreement of an attorney is conclusive and binding on the client, in the absence of fraud, although the attorney acts beyond the scope of his authority. This statement of the rule, with some qualifications, is the rule in some jurisdictions. 6 C.J. 645, § 150. But the rule of our decisions, which is in accord with the weight of authority, is that compromise of the client's cause of action is not within the scope of an attorney's general authority, and to this end he must have the express authority of the client. Senn v. Joseph, 106 Ala. 454, 17 So. 543; Craft v. Standard Acc. Ins. Co., 220 Ala. 6, 123 So. 271; Robinson v. Murphy, 69 Ala. 543; Lockhart v. Wyatt, 10 Ala. 231, 44 Am. Dec. 481; Gullett v. Lewis, 3 Stew. 23; Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877, 66 A. L. R. 102, and annotations pages 107-139.

The reason of the rule is that an attorney at law "is the special agent of his client, whose duties, usually are confined to the vigilant prosecution or defense of the suitor's rights." Gullett v. Lewis, supra. "The power of an attorney is not co-equal, co-extensive, or the equivalent of that of the client. He is, as has been said in numerous decisions of this court, a special agent, limited in duty and authority to the vigilant prosecution or defense of the rights of the client. He can enter into no bargains or contracts, though he may make agreements in writing touching the course of proceedings in pending suits, or the issue or return of executions on judgments he may have obtained, which will bind the client." Robinson v. Murphy, supra.

The binding effect of a compromise entered into by an attorney without express authority depends upon the client's ratification, and, although the compromise may have been carried into a judgment of a court, the judgment is at most prima facie evidence of the attorney's authority, and, if he was without express authority, and the compromise is not ratified, but is repudiated, such judgment will be set aside on timely motion. Senn v. Joseph, supra; Dwight v. Hazlett supra; and authorities cited in note (d), 66...