Grigsby v. Liles

147 So. 2d 836, 41 Ala. App. 627, 1961 Ala. App. LEXIS 387

• Court: Alabama Court of Appeals
• Decided: March 14, 1961
• Docket: 8 Div. 732
• Status: Published

Opinions

HARWOOD, Presiding Judge.

On 27 November 1957, Charles W. Liles, who was then a minor, was riding as a passenger in an automobile driven by Lloyd Grigsby, Jr. Grigsby collided with a concrete guard rail, wrecking his automobile. As a result Liles, suing by his father and next friend, filed suit against Grigsby on 26 November 1958, claiming damages for personal injuries received in the accident.

The complaint was in two counts, one charging simple negligence and the other count charging willful or wanton conduct. Liles being a guest in Grisgby’s automobile would be within the operation of our “guest statute,” and would therefore of necessity have to base his recovery on the willful and' wanton count in the complaint.

On 9 March 1960, the case was called for trial on the jury docket of the Circuit Court of Lauderdale County, having been continued from 7 March 1960. On 9 March 1960, by consent of the plaintiff and the defendant and their respective attorneys of record, the court entered a consent judgment in the sum of $1,000 in favor of the plaintiff Liles and against the defendant Grigsby.

It appears that when the case was called for trial an eyewitness, Jesse Arlin “Red” Canerday, who had been subpoenaed as a witness by both the plaintiff and defendant, was not in court, although he had answered when the case was originally called on 7 March. The attorneys for the defendant asked the court for an attachment for the witness Canerday and the court advised the attorneys for the plaintiff that the court would use its processes to get the absent witness and that he might be there by the time he was needed.

Counsel for the plaintiff stated to the court that no other witness, other than the plaintiff and defendant, knew the facts as the witness Canerday. Repective counsel in the presence of the court then entered upon a discussion of a possible settlement of the case. In this connection, the court in its order setting aside and vacating the consent judgment made the following statement :

“On the morning of and during the 30 or 40 minutes the settlement was being discussed and effected, some of the plaintiff’s witnesses, — particularly the eye witness, Canerday — were not present in the courtroom. It appears, that the father of the minor defendant had stated in a country store that the case either would not be reached for trial or would probably not be reached for trial that day, and the word got to the witness Canerday and though he should have been in court; nevertheless, he was not in court. And his absence was through no fault of the-plaintiff. The court being orally approached at the Bench on the matter of a possible continuance stated to plaintiff’s attorney that the Court thought the case ought to be either settled or tried that day, and at least, made strong implications that a formal application for continuance would be refused. The settlement followed. It would appear that the minor plaintiff and his father feel that they have not had their day in court. And the court is apprehensive that the settlement might not have been entered into freely and voluntarily and without pressure.”

On 11 March 1960, the defendant Grigsby filed a written motion praying that the court direct the clerk to enter and write up the judgment of the court pronounced by consent in open court on 9 March 1960, in favor of the plaintiff in the amount of $1,000, with cost taxed against the defendant. Subsequently thereto, the plaintiff Liles filed a motion praying that the consent judgment be set aside. On March 25, 1960, the motion of the defendant to have the consent judgment entered, and the plaintiff’s motion to have said judgment set aside were heard together, and the defendant’s motion to have the consent judgment written and entered was granted, and the plaintiff’s motion that such judgment be vacated was set for further hearing to 6 April 1960, and on that date this motion was further heard and taken under advisement of the court.

On 18 April 1960, the plaintiff’s motion to set aside the consent judgment was granted.

The motion to set aside the consent judgment contains some twelve grounds. We think a fair summary of these grounds is to the effect that: (1) the court abused its discretion in requiring the plaintiff to proceed to trial in the absence of any witnesses other than the plaintiff, (2) that the consent judgment is based on an agreement which resulted'fro'm-surprise which ordinary prudence 'could not have guarded against in that defendant’s attorneys had furnished plaintiff’s attorneys with written statements from witnesses which statements were to the effect that the defendant was not guilty of willful and wanton conduct, whereas the witnesses would have testified to facts which would have tended to establish willful and wanton 'conduct, (3) that defendant’s attorneys, in advising witnesses Brewer and Williams that they could be on call precluded plaintiff of an opportunity to confer with said witnesses, and, (4) the $1,000 judgment is so inadequate as to shock the conscience.

At the hearing on the motion to set aside the consent judgment, it was stipulated that the plaintiff and the defendant at the time of the trial were over twenty-one years of age.

The evidence submitted at such hearing, tends to show that upon being employed to -represent the insurer of the defendant, and the defendant, the attorneys for the defendant proceeded to obtain written statements from several witnesses, which statements, as before state, tended to negative any willful or wanton conduct on the part of the defendant. These statements were sworn to before a notary public, and were obtained in good faith. We wish to make it clear that there is no charge of misconduct made against the attorneys for the defendant, and in fact they were only, performing their duties consonant with their employment. It is the solemn sworn duty of an attorney to ascertain, so far as he can’, what the ¿vidence is, and his duty is not at an end when he has conferred with his client. He must see and talk with the witnesses. Golson v. State, 34 Ala.App. 396, 40 So.2d 725.

As these statements were obtained, copies were -immediately ■ furnished -to • the attorneys for the plaintiff,-and-this was some three to six months -before the' date o.f trial. -

It also apjpears that the witness Canerday also gave to the defense attorneys two. written statements, contradictory to the previous written statement given to the plaintiff’s attorneys. A copy of these statements was promptly furnished- by plaintiff’s attorneys to the -defense attorneys.- • .

The medical reports of Dr. J. Ralph Rice,; an ophthalmologist of Nashville, Tennessee, and of Dr. Shaler S. Roberts, an' ophthalmologist of Florence, Alaba.ma, concerning their examination of the plaintiff, made some timé after the accident, were received in evidence. Dr. Rice was of the opinion that the, plaintiff had .a 10,% loss of visual efficiency in his right eye, or a binocular deficiency of 3%. .

Dr. Roberts assessed the plaintiff’s visual deficiency at not over 5% of the time he was awake.

When the case was first called for trial on 7 March 1960, the witness Brewer, who had been subpoenaed by both the.plaintiff and the defendant, was in court,. Brewer worked at the Stylon plant. According to. the record, the following is shown, in connection with this witness:

‘‘Mr. Patterson: Yes, sir, it was on Monday. Frank approached me and asked if Tommy Brewer had been here that morning. I told him he had been, and I told Frank the boy had been missing work and that I told him to go back to Stylon, and Frank didn’t seem alarmed, but, as I remember, he shrugged it off and said, ‘Well, I wanted to see him.’ That was on Monday.

“Mr. Potts: I would like for the record to show that I was not apprised that he was working that day when the settlement was had, and I actually didn’t remember the place of employment that he mentioned that he was working on Monday, but on the day that the Court instructed us to go to trial I was not informed as to the whereabouts, but I was on Monday and that Mr. Patterson told him not to come in; but is is my understanding that the witness was here in court but we didn’t know it. I admit what Don said, but that information wasn’t given on Wednesday.”

It should be noted that in the written sworn statement given by Brewer to defendant’s attorney on 5 August 1959, he set out that he was employed by the Stylon Corporation, Plant No. 2, in the shipping department. A copy of this statement was furnished plaintiff’s attorneys several months before the date of trial.

The witness Williams was a high school student, and arrangements had been made by defense counsel to have him on call. He had not been subpoenaed by the plaintiff, counsel for plaintiff stating they expected to have a subpoena issued for him at the time of trial.

Counsel for the plaintiff testified that during the discussion, on the day of the trial, relative to a possible settlement of the case, they conferred with the plaintiff and told him that in view of the absence of witnesses they were of the opinion that he might probably lose his case if they went to trial, and recommended that the settlement offer of $1,000 be accepted. The plaintiff was reluctant to accept such offer but upon insistence of his counsel he finally agreed to accept such offer. Counsel then returned to the courtroom, and announced the agreement for the consent judgment.

It further appears that very shortly after the consent judgment the plaintiff and his attorneys then interviewed several of the witnesses, whose statements had been furnished by the defense to the plaintiff’s attorneys, and it was then first learned that these witnesses would testify differently from their sworn written statements.

Upon the entry of the order setting aside the consent judgment counsel for the defendant, being uncertain of the proper mode of obtaining a review, proceeded both by appeal and by a petition for an alternative writ of mandamus.

In Louisville & N. R. Co. v. Bridgeforth, 20 Ala.App. 326, 101 So. 807, this court held that an appeal would lie from an order setting aside a consent judgment. And in Senn v. Joseph, 106 Ala. 454, 17 So. 543, an appeal was entertained from an order setting aside a consent judgment with no allusion as to the proper review procedure.

However, in National Bread Co. v. Bird, 226 Ala. 40, 145 So. 462, 463, we find the following positive pronouncement:

“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.”

In view of the above pronouncement the appeal is dismissed, and our review will be upon the petition for an alternative writ of mandamus.

Historically, the overwhelming weight of authority is that consent judgments are construed as being contracts of the litigants, and not as judicial acts of the court, and as contracts they cannot be modified without consent of the parties.

In entering a consent judgment a court does not inquire into the wisdom of the bargain, nor of the facts at issue. The only question to be determined is whether the parties are capable of binding themselves by consent, and have done so. Once these questions are decided, the court’s function is ministerial. See 108 Univ. of Penn. Law Review, p. 178.

In State ex rel. Carmichael v. Jones, 252 Ala. 479, 41 So.2d 280, 286, the Circuit Court had refused to' enter a consent judgment, the terms of which had been agreed upon by the respective litigants. In granting a writ of mandamus directing the court to enter the judgment as agreed upon, our Supreme Court wrote:

“Whatever may be the holdings elsewhere, this court has long been committed to the principle that the act of rendering a consent judgment, lawfully agreed upon between parties, sui juris, and within the jurisdiction of the court, is ministerial and not judicial as these terms are considered in that connection. Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550(4); Cowley v. Farrow, 193 Ala. 381, 383, 69 So. 114; Carr v. Illinois Central R. Co., 180 Ala. 159, 166, 60 So. 277, 43 L.R.A,N.S., 634.”

The rule that consent judgments are to be regarded as contracts does not apply to decrees in equity, the reason therefor being cogently stated by Justice Cardozo in the “Packers Consent Decree” case, United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 462, 76 L.Ed. 999, as follows:

“Power to modify the decree was reserved by its very terms, and so from the beginning went hand in hand with its restraints. If the reservation had been omitted, power there still would be by force of principles inherent in the jurisdiction of the chancery. A continuing decree of injunction directed to events tó come is subject always to adaptation as events may shape the need. * * * The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative. * * * ”

The Bridgeforth case, supra, involved a consent judgment agreed to by an intruding administratrix, whose appointment was procured without, knowledge of the next of • kin. Clearly there could be no valid consent under such facts, and the judgment was properly set aside. However, in the course of the opinion there are rather sweeping statements as to the power of a court to set aside consent judgments. Some of these statements are, in our opinion, too broad, and insofar as they conflict with our conclusions in the present case, they are hereby disapproved.

It is the clear doctrine of our cases that a consent judgment is in the nature of a contract between the parties, to which the court gives its formal approval administratively. A consent judgment waives all prior irregularities, and releases error, and cannot be set "aside without the consent of the parties in the absence of fraud, mutual mistakes, or actual absence of consent. See Charles v. Miller, 36 Ala. 141; Davis v. McCampbell, 37 Ala. 609; McNeil v. State of Alabama, 71 Ala. 71; Ex parte Gresham, 82 Ala. 359, 2 So. 486; Curry v. Peebles, 83 Ala. 225, 3 So. 622; Senn v. Joseph, supra; Adler v. Van Kirk Land & Construction Co., 114 Ala. 551, 21 So. 490; Gunter v. Hinson, 161 Ala. 536, 50 So. 86; Cowley v. Farrow, 193 Ala. 381, 69 So. 114; Garrett v. Davis, 216 Ala. 74, 112 So. 342; National Bread Co. v. Bird, supra; Brasher v. First National Bank of Birmingham, 232 Ala. 340, 168 So. 42; Nixon v. Nixon, 245 Ala. 43, 15 So.2d 561; Mudd v. Lanier, 247 Ala. 363, 24 So.2d 550; A.B.C. Truck Lines v. Kenemer, 247 Ala. 543, 25 So.2d 511; Gossett v. Pratt, 250 Ala. 300, 34 So.2d 145; Louisville & N.' R. Co. v. Bridgeforth, supra; Heath v. Hall, 39 Ala.App. 623, 106 So.2d 38; Annotation, Power to Open or Modify Consent Judgment, 139 A.L.R. 421; 49 C.J.S. Judgments §§ 173-178; Black on Judgments (2d Ed.), Sec. 319, Consent Judgments, p. 484; Freeman on Judgments, 5th Ed., Sec. 1344-1352. ' '

There is no charge of fraud in the procurement of the consent judgment in the present case. The situation pictured by the record is that of attorneys diligently and properly carrying out their duties, and that of some of the witnesses being of a type willing to make statements willy nilly, accommodating the last party who interviewed them.

Nor is there any evidence tending to show that the consent judgment was the result of mutual mistake.

“ * * * A party to a contract cannot avoid it on the ground that he made a mistake where there has been no misrepresentation, and there is no ambiguity in the terms of the contract, and the other contractor has no notice of such mistake and acts in perfect good faith. A unilateral error, it has been said does not avoid a contract * * *. However, a unilateral mistake in the making of a contract, of which the other contracting party is entirely ignorant, and to which he in no way contributes, will not affect the contract, or afford, ground for its avoidance or recission, unless it be such a mistake as goes to the substance of the contract itself. Not only must the mistake be material to the transaction, but the person who made the mistake must show * * * that his mistake is not due to want of care or diligence.” Ex parte Perusini Construction Co., 242 Ala. 632, 7 So.2d 576, 578.

Further, “the law is well settled by a great many of our cases that it is not sufficient after the trial to set out to find what was really the truth.” Waldrep v. Southern Railway Co., 266 Ala. 652, 98 So.2d 614, 617.

Clearly, there could be no basis under the evidence for setting aside the consent judgment on the ground of mistake.

Nor do we think any basis exists upon which it could be said there was any absence of actual consent. The plaintiff was over the age of twenty-one at the time the agreement for the consent judgment was made. He and his attorneys were aware of Canerday’s contradictory statements, and of the medical reports as to plaintiff’s injuries. While the plaintiff may have been reluctant to accept the offer of $1,000, it is clear.that after full consultation with his attorneys.he did accept the offer. That thereafter he discovered that some of the witnesses would testify in contradiction to their previous written statements, and which statements were in the hands of the plaintiff some three months before the trial,, cannot be deemed to have affected his consent previously made.

In his order granting the motion to set aside the consent judgment the able trial judge expressed apprehension that the agreement for the consent judgment was entered into under pressure. This- apprehension could only relate to the matter of the court insisting upon a trial of the case. This attitude of the trial court was correct. The consent judgment obviated all mistakes in the proceedings below. “Consensus tol-i lit errorum.” McNeil v. State, supra.

Further, a motion for a continuance is an affirmative matter, and must appear of record. In its absence we cannot presume such motion was made. Hoskins v. Hight, 95 Ala. 284, 11 So. 253. See also Ball v. State, 252 Ala. 686, 42 So.2d 626.

One of the grounds of the motion to set aside the consent judgment was that amount of the judgment, i. e., $1,000, was so inadequate as to shock the conscience.

We find nothing in the evidence submitted in the hearing of the motion to sustain this ground. , The degree of injury-sustained by the plaintiff has already been referred to, and we will not again set forth such injuries.

It further appears from the record that Mr. Bert Haltom, a member of the firm representing the defendant, testified that in the fall of 1959, the attorney for the plaintiff offered to settle plaintiff’s claim for $1,000, and this offer was refused. This offer of settlement was renewed in February 1960, and again refused as, “I consistently told him I thought I could win the case. * * * ” Mr. Haltom further testified that on the day of trial he informed the attorney for the plaintiff that he would not recommend settlement of the case for the sum of $1,000, but that the claim agent, and an attorney for the insurer were present, and' he would submit the acceptance of the offer ‘to them for determination.

■ No evidence contradictory of this testimony-by Mr-,,-Hal tom appears in the record.

One further point we think should be discussed.- -In -his judgment setting aside the consent- judgment, the judge below set forth:

“Thus plaintiff’s motion, as to the law applicable, is governed by that law applying to motions made within thirty days.”

. We are not in accord with this conclusion.

In Freeman on Judgments, 5th Ed., Sec. 1352, we .find the following:

“A judgment by consent is an exception to the rule that a court may modify its judgments during the term. If it conforms to the agreement or stipulation, it cannot be changed or altered or set aside without the consent of the parties unless it is properly made to appear 'that it was obtained by fraud or mutual mistake or that consent was not in fact given, which is practically the same thing.” Italics ours.

We are convinced,. after study, that the rule announced above in Freeman on Judgments is implicit in the doctrines of our decisions.

From what we have said, it follows that a peremptory writ of mandamus is due to be'awarded unless respondent, after being advised of this opinion, is content to’vacate the order of 18 April 1960, setting aside the consent judgment. .

Writ awarded conditionally.