Rehearing
Denied May 19, 1930.
Syllabus by the Court.
Counsel's
agreement to dismiss pending case on happening of
contingency, which actually happened, binds client, though
client did not know thereof nor assent thereto.
The
consent and agreement of counsel to dismiss a pending case
upon the happening of a certain contingency, where that
contingency actually happened, is binding upon his client
though the latter did not know of the consent and agreement
and consequently did not assent thereto.
Agreement
to dismiss case not in writing but not denied is enforceable
especially where acted on by one party (Superior Court Rule
19; Civ. Code 1910, § § 6221, 6278; Supreme Court Rule 3).
Where
the consent and agreement referred to was not reduced to
writing, but was not denied, it is enforceable; and
especially is this true where it was acted upon by one of the
parties.
Error
from Superior Court, Fulton County; John D. Humphries, Judge.
Two
suits by Mrs. Corine Smith and others against the Stone
Mountain Confederate Monumental Association and another.
Judgments for plaintiffs, and defendants bring error.
Reversed.
Agreement
to dismiss case not in writing but not denied is enforceable
especially where acted on by one party (Superior Court Rule
19; Civ.Code 1910, §§ 6221, 6278; Supreme Court Rule 3).
On July
5, 1929, there came on to be heard in the superior court of
Fulton county the case of Mrs. Corine Smith et al. v. Stone
Mountain Confederate Monumental Association and Fulton
County, a petition for injunction and other equitable relief.
When the case came on for trial a motion of the defendants to
dismiss said case, "in compliance with an oral agreement
theretofore entered into between counsel for plaintiffs and
defendants," was urged and heard. Upon the hearing of
the motion Scott Candler, Courtland S. Winn, and Walter T.
Colquitt, the attorneys representing the plaintiffs and
defendants in the case, testified as follows: "A suit
had been brought in DeKalb superior court against the Stone
Mountain Confederate Monumental Association, the said
plaintiffs in said suit being represented by attorneys John
I. Kelley and Scott Candler, the defendants in said suit
being represented by Messrs. Colquitt & Conyers and B. P.
Gambrell. The said suit had been terminated in favor of
defendants. That some of the parties who had been present at
the trial of said case then came to Atlanta and got the same
attorneys, John I. Kelley and Scott Candler, to file the
instant case. That subsequently thereto another case had been
brought in DeKalb superior court by S. H. Venable et al., and
that while said case was pending in DeKalb superior court the
instant case had been on the trial docket for trial in Fulton
superior court, and that the case had been finally dismissed
by an order of court as of the 9th day of April, 1929. That
at the time of the dismissal of said instant case there were
negotiations looking toward the settlement of controversies
which had arisen over the construction of the Confederate
monument upon Stone Mountain. The instant case had been
dismissed by an order of court on the 9th day of April, 1929.
After such dismissal the attorneys for plaintiffs through
their attorney, Mr. Scott Candler, came to the
defendants' attorneys in said case and stated that the
settlement of the controversy between S. H. Venable and the
Stone Mountain Confederate Monumental Association, pending in
DeKalb superior court, might be consummated, but that in his
opinion the settlement of the Venable litigation could be
more speedily and effectually carried on if the attorneys for
defendants allowed a consent order to be taken reinstating
the instant case, and that if they would agree for him to
take such an order and reinstate the case it was expressly
agreed that in the event of the settlement of the Venable
litigation that then the order of reinstatement of the
instant case would be revoked, or another order of dismissal
taken immediately upon the settlement of the Venable
controversy with the Stone Mountain Confederate Monumental
Association. Such understanding and agreement was entered
into between Mr. Scott Candler, attorney for plaintiffs, and
the attorneys for defendants,and it was agreed that by virtue
of such agreement the said Scott Candler would take an order
reinstating said case. It was only by virtue of such consent
and agreement thus expressly entered into that the said Mr.
Scott Candler was to obtain an order for the reinstatement of
the instant case which then stood dismissed. The form of the
order revoking the dismissal and reinstating the case was not
submitted to attorneys for defendants, but Mr. Scott Candler
by virtue of the agreement did, on the 17th day of April,
1929,
take an order in said case. Relying upon the agreement made
between the attorneys for the respective parties, the form of
said order as taken was not known by the attorneys for the
defendants until the motion was made in the present case to
carry out the said agreement. The facts as stated in the
motion were admitted as true."
It is
further recited in the bill of exceptions: "Subsequent
to the order of dismissal and the order reinstating said case
the entire controversy between S. H. Venable and Stone
Mountain Confederate Monumental Association had been settled.
At the various conferences undertaking the settlement of the
said controversy, attorneys for defendant stated to the
directors of the Stone Mountain Confederate Monumental
Association that they had agreed with counsel representing
plaintiffs in the instant case that upon the settlement of
the Venable litigation the former order of dismissal in the
instant case would either stand or an order would be taken
carrying out the agreement entered into between counsel as
already set out. Such statements were made to the directors
of the Stone Mountain Confederate Monumental Association, so
that they would agree to the proposed settlement of the
Venable litigation. Therefore the agreement and settlement
was entered into between the Venables and the Association,
and the suits filed in DeKalb superior court were dismissed.
Also in pursuance of the agreement entered into in settlement
of the Venable controversies the Association secured the
dismissal or nol. pros. of indictments and other matters
pending in DeKalb superior court against Borglum. After the
settlement of the Venable litigation, in order to carry out
the agreement entered into between counsel as to the instant
case, notice was given that this case would be put on the
calendar, the purpose being to take an order of dismissal in
pursuance to the agreement heretofore detailed. After the
notice had been given, some of the plaintiffs in the instant
case then for the first time employed the firm of Frank T.
Grizzard and H. F. Sharp to represent them in resisting said
dismissal and to represent them. The said firm of attorneys
had not heretofore been engaged or employed in said
litigation. The plaintiffs in resisting the prayers of the
motion were represented by said Frank T. Grizzard and H. F.
Sharp."
Scott
Candler, Esq., stated that he had not discussed the dismissal
or reinstatement of the case with his client. Walter
Colquitt, Esq., stated that in the agreement with counsel
nothing was said about the right of plaintiffs to bring
another case. The plaintiffs, Mrs. Andrews and Mrs. Nichols
testified that they knew nothing about the dismissal of the
case and knew nothing about the reinstatement of this case,
or about the agreement with reference to a dismissal or
reinstatement, until after notice served upon them with
reference to placing the case upon the calendar. The motion
to dismiss the case in Fulton superior court, which was
admitted to be true, showed the following facts (after
stating the case): "The above-stated case had heretofore
been dismissed on the 9th day of April, 1929; and
irrespective of whether or not there were any legal grounds
upon which the said order of dismissal could have been
revoked or set aside, the following consent or agreement was
entered into between the attorneys for the plaintiff and
defendants, and upon such consent or agreement alone was the
said order of dismissal vacated. At the time of the dismissal
of said suit litigation was pending between S. H. Venable et
al. and Stone Mountain Confederate Monumental Association.
There was at that time an undertaking on the part of parties
and attorneys to said litigation and public-spirited citizens
and organizations looking toward a settlement of said suit
and any and all matters which might in any way militate
against the carrying on of the great object in which the
Stone Mountain Confederate Monumental Association was
engaged. In undertaking to settle said controversy one of the
attorneys representing the plaintiff in the instant case, in...
