Charles v. Miller

36 Ala. 141

• Court: Supreme Court of Alabama
• Decided: January 15, 1860
• Status: Published

Opinion

A. J.. WALKER, C. J.

There can be no doubt of the - power of a court to carry into effect the solemn and formal and written agreements of counsel,..in reference to proceedings in the causes which they represent. — Harvey and Wife v. Thorpe, 28 Ala. 250; Starke & Moore v. Kenan, 11 ib. 818; Rosenbaum v. State, 33 ib. 362; Ex-parte Lawrence, in manuscript. Indeed, the Code (§ 743) expressly provides, that “an attorney has authority to bind his client, in any action or proceeding, by any agreement in relation to such cause, made in'writing, or by an. entry to be made on the minutes of the court.”

The question, whether it is not the duty of the courts where an agreement of counsel has been made improvri dently or by mistake, or has been procured by fraud, to withhold an enforcement of it, does not belong to this ease. The facts stated in the appellant’s petition as reasons for, setting aside the agreement, supported by his affidavit, were controverted by the answer.of the adverse-party, also supported by affidavit. The petition for setting aside the agreement, and the report based upon such agreemént, being.,-thus denied, it devolvedmpon the petitioner to sustain his assertion of facts by proof; and, ás he did-not do- so,"the chancellor properly disregarded the petition. R would have been improper for the chancellor to have acted upon the" supposition that the agreement had been made improvidently, or by mistake, wdien there was- no evidence of th® fact, save the appellant’s own affidavit, which was controverted by that of the opposite party. There was no error committed by the chancellor in not making a reference of the questions of fact to the register, or in not continuing the case to afford an opportunity for. takingffestiraony, when neither of those things was' ask-edi by. the. -appellant.

The. decree, of. the. court below ismffirmed..