Hairston v. . Garwood

31 S.E. 653, 123 N.C. 345, 1898 N.C. LEXIS 74

• Court: Supreme Court of North Carolina
• Decided: November 29, 1898
• Status: Published

Opinion

Montgomery,- J.:

This proceeding is on a motion made by the plaintiffs. to vacate and . set aside a judgment taken against them by the defendants at the Fall Term, 1896, of Davie Superior Court, and to re-instate the case which was dismissed by that judgment. The case in which the motion was made embraced a former suit by the defendants here against the plaintiffs, and a latter suit by the plaintiffs here against the defendants —both suits being over the same subject matter and consolidated by order of the Court.

The grounds of the motion were, first, irregularity of the judgment, and, second, surprise and excusable neglect under Section 274 of The Code. The plaintiffs are entitled to no relief on the latter point, as the whole proceeding shows that the plaintiffs’ contention is that their counsel exceeded his authority in his conduct of the case. He is not charged with negligence but with too much zeal. The judgment complained of recited that the matters and things set up and involved in the cases were by and with the consent of the attorneys for' plaintiffs and defendants determined in favor of J. M. Garwood, the defendant, and that J. M. Garwood was the owner of the land described in the pleadings and that the consolidated case be dismissed. The plaintiffs contended, on the hearing of the motion that the judgment was irregular for the reason that the consent of the attorney of the plaintiffs to the rendition of the judgment was not the consent of the plaintiffs themselves. Affidavits were introduced by the plaintiffs going to show that the plaintiff’s attorney, without the consent of the plaintiffs and even against their instructions, entered into a compromise of the law suit and that the judgment was the result of the compromise; that as soon as they heard of the judgment, they made the motion to vacate it, and that if they had been present when the judgment was' rendered they would have opposed it. The defendants also had affidavits in which the compromise was admitted but affirming that the plaintiffs had knowledge of the action of their attorney. His Honor declined to find whether the plaintiffs did or did not consent to the compromise and judgment, and held the judgment to be regular. There was no error in that course by his Honor. The action of the plaintiffs’ attorney was plainly within the scope of his authority. An attorney can confess a judgment and thereby bind his client. Weeks on Attorneys, Section 222. In Stump v. Long, 84 N. C., 616, it is said by-the Court that “every agreement of counsel entered on record and coming within the scope of his authority must be binding on the client,” and to the same effect is the opinion in the case of Bradford v. Coit, 77 N. C., 72; Henry v. Hilliard, 120 N. C , 479. If the judgment had shown upon its face that it had been entered as the result of a compromise made by' the attorney, and that the judgment had been entered by his consent, the question would be a very different one from the one presented by this record. That question is not before us and we need not discuss it. On the subject, however, the case of Moye v. Cogdell, 69 N. C., at page 95, ' may be read with interest.

Affirmed.