CLARK, C. J., dissenting. *Page 242 Walter Gardiner died in 1912, leaving the following will:
AYDEN, N.C. 13 August, 1909.
If I, Walter Gardiner, were to die after this date, it is my will that everything I have shall be divided equally between my wife and my mother for their lifetime, and then to go to my son, Wilbur, if he lives; but if he dies, then to my brother, Isaac. This refers to the money that will come to my estate from the Prudential Insurance Company, as well as what property I now have.
WALTER GARDINER.
J. J. May, the defendant, qualified as administrator of Walter Gardiner. When the will was produced the said J. J. May qualified as administrator with the will annexed, and allotted to the widow of the testator a year's support. This action was then brought by the plaintiff, mother of the testator, for the half of the personal property bequeathed to her in the will. The cause came on to be heard at May Term, 1916, before JudgeWhedbee, when the following judgment was entered:
It is now ordered, adjudged, and decreed, that the plaintiff recover of the defendant one-half of the sum of $400, being the year's provision allotted, and one-half of the sum of $75, the excess value of the two horses, to wit, the sum of $237.50, after deducting one-half of the cost of this action; and in addition thereto it is further adjudged that the plaintiff is entitled to the sum of $21.51, which has been paid into the clerk's office.
And it is further ordered that the cost of this action be taxed, one-half against the plaintiff and one-half against the defendant, and after paying said cost the defendant is hereby directed to pay over the recovery herein to the plaintiff, or her attorney.
H. W. WHEDBEE, Judge Presiding.
The judgment above set forth was, as appears by the record, entered by consent of the parties, through their attorneys. At August Term, 1916, defendant moved to set aside the judgment upon the ground that neither the parties, nor their attorneys for them, had the power, by consent, to enter a judgment by which the corpus of the personal estate could be turned over to the plaintiff, as owner of one-half of the life estate, without securing the remainderman against loss by any default (194) or delinquency on her part, from waste or otherwise. There was no allegation of fraud, and none of mistake, except the one *Page 243 that when defendant consented to the judgment he inadvertently overlooked the error in law, which consisted in not providing for the security of the remainderman against loss. This motion was heard by Judge Lyon at August Term, 1916, when he denied the motion. No facts were found by Judge Lyon, and so far as appears from the record he was not requested to find and state the facts. Defendant appealed. As the judge was not requested to state the facts, we must assume that he found such facts as would support his judgment, as we do not presume that there was error in the judgment, but the contrary. McLeod v. Gooch,162 N.C. 122; Pharr v. R. R., 132 N.C. 418, 423, and cases therein cited. If the defendant was not alert and careful of his own interests, it was not the fault of the plaintiff, and she should not be made to suffer for his inattention. She denies that there was any mistake of law or fact, and alleges that defendant fully considered the decree after it had been submitted to him and he had time to do so, with the aid of counsel; and further, that he fully and voluntarily agreed thereto after such examination of the judgment and deliberation as to its effect. We must assume that the judge adopted these as the facts, in the absence of a specific finding to the contrary. Pharr v. R. R., supra; Carter v.Rountree, 109 N.C. 29; Albertson v. Terry, 108 N.C. 75; Smith v. Whitten,117 N.C. 389. It was decided in Carter v. Rountree, supra, as appears by the fifth headnote, that "Upon a motion to vacate a judgment it is not required of the court to set forth its finding of the controverted facts upon the record, unless a request to that effect is made by some of the parties to the proceeding, when it would be error to refuse the request."McLeod v. Gooch, supra. "We do not consider affidavits for the purpose of finding the facts ourselves in motions of this sort." Osborn v. Leach,133 N.C. 428.
This brings us to the next and last question in the case, as to the nature and legal effect of a consent judgment. Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being on the party attacking the judgment to show facts which will entitle him to relief. Edney v. Edney, 81 N.C. 1; Stump (195) v. Long,84 N.C. 616; Kerchner v. McEachern, 90 N.C. 179; *Page 244 Vaughan v. Gooch, 92 N.C. 527; Lynch v. Loftin, 153 N.C. 270; Simmons v.McCullin, 163 N.C. 409; and Harrison v. Dill, 169 N.C. 542, where the subject is fully considered and the authorities reviewed. Justice Dillard said in Edney v. Edney, supra: "A decree by consent, as such, must stand and operate as an entirety, or be vacated altogether, unless the parties by a like consent shall agree upon and incorporate into it an alteration or modification. If a clause be stricken out," he adds, "against the will of a party, then it is no longer a consent decree, nor is it a decree of the court, for the court never made it" "There can be no doubt that a judgment entered up by the court, upon the agreement of parties, is, to say the least, as conclusive upon them as if judgment is rendered in the ordinary course of proceeding." Pelton v. Mott, 11 Vt. 148. While the terms are settled by the parties, the judgment has the same force and effect as if it had been entered by the court in regular course, and, in that sense, it becomes the judgment of the court by virtue of its sanction in receiving it and ordering that it be spread upon its records. Kerchner v. McEachern,90 N.C. 179; Simmons v. McCullin, supra. This is the settled law, as shown by many of our decisions. Vaughan v. Gooch, supra. If this be so, defendant has no ground upon which to rest his motion. There is no finding that there was fraud or mistake, or want of authority in the attorney, and it is not denied that the judgment as entered, and in form, was by consent.
It is suggested that the burden of proof was upon the plaintiff to establish that the consent judgment was entered by the defendant's attorney with the authority of his client, or, in other words, that he was duly empowered to give the defendant's consent to the judgment. The law is to the contrary.
The general management of a suit is committed to the attorney, and he has a very extensive authority, which springs mainly from his general retainer. He has the free and full control of a case in its ordinary incidents, and as to those incidents is under no obligation to consult his client. In important matters, however, he should do so and take his client's instructions. He is likewise under obligation to render an account when desired. As the client is bound by the attorney's acts, if there is no collusion with the opposing party, the client can have redress in case of injury from the attorney alone.
The attorney may exercise his discretion in all the ordinary occurrences which take place in a cause, and may make stipulations, waive technical advantages, and generally assume the control of the action. Weeks on Attorneys at Law, p. 385 et seq.
(196) A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary *Page 245 authority from his client, and not to have betrayed his confidence or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principle were different. The authorities which support this view are very numerous, and, as the question is an important one, we will refer to a few of them.
Speaking of consent and confessed judgments, it is stated by a text-writer that "The prevailing view seems to be that the power of an attorney to confess judgment for his client is implied, though some disinclination to follow this rule has been shown. In every case, however, the record of the judgment would be prima facie evidence that the attorney who confessed it was properly authorized. It has also been held that an attorney may, by virtue of his employment, consent to a decree in behalf of his client." 4 Cyc., 936. As sustaining this prevailing view, he cites, among other authorities, Hairston v. Garwood, 123 N.C. 345. The following cases in other States hold that the record of the judgment by consent, although the consent was given by an attorney appearing in the case, is, at least, prima facie evidence that the attorney was authorized to do so, and acted with full authority in the premises: Price v. Ward, 25 N.J. L., 225;Merrity v. Clow, 2 Tex. 582[2 Tex. 582];Arnold v. Nye, 23 Mich. 286; Dobbins v. Dupree,39 Ga. 394 Wilson v. Spring, 64 Ill. 12;Jackson v. Brown, 82 Cal. 275; Martin v. Judd,60 Ill. 78.
Anciently the right to question the attorney's authority was denied, and this is the doctrine, even now, in some courts. (Price v. Ward, supra), and intimation to that effect was given in Stump v. Long, 84 N.C. 616. But we need not go that far in this case, nor express any opinion in regard to the correctness of the view that an attorney has the implied power to consent to a judgment.
In Stump v. Long, supra, it was said by the Court, through ChiefJustice Smith: "It is not denied that the defendant, whether in person or by his attorney, consented to the order. Indeed, we understand his Honor's finding to go to the extent of saying that the defendant himself consented to it. But supposing it to be otherwise, and that he was only committed to it by the consent of his counsel, how then does his case stand? Every agreement of counsel entered on record and coming within the scope of his authority must be binding on the client. To hold otherwise would lend much uncertainty to many of the most important business transactions — so important and so solemnly disposed of that the parties are willing to have their agreements in regard to them enter into and become a part of the judgments of the court, to be (197) permanently recorded upon the dockets of the court. Neither the courts nor parties can look behind such an act on the part of an attorney to inquire into his authority or the extent and purport of the client's *Page 246 instructions. His acts and his admissions must be taken as those of him whom he represents." As said by Judge Reade in Bradford v. Coit, 88 N.C. 72: "The negligence of counsel or mismanagement of the case or unfaithfulness are all matters to be settled between client and counsel. No harm must be allowed to befall others on account of it."
If that be a correct statement of the law (and we do not decide that it is, as we need not do so), we are bound to treat the case as if the petitioner had been actually present and given his assent to the order as drawn. He agreed to it, as Judge Smith said, because his attorney did. The attorney had the authority, in this case, to appear for the defendant generally, and to act in his behalf, and must be presumed to have had power to consent to the judgment. In view of this fact, the following statement of the law, taken from Harrill v. R. R., 144 N.C. 542, is quite pertinent: "The counsel who signed the case agreed in behalf of the defendant was actually its attorney at the time, and representing it in this case at the term of the court when the case was settled. He had, apparently, all the authority necessary to act in the premises, and because he failed to observe special private instructions as to the manner of defending the suit is no reason, in our opinion, under the circumstances of this case, why the judgment should be set aside, as he appeared to be clothed with general authority to act for the defendant." Greenlee v. McDowell, 39 N.C. 485;Branch v. Walker, 92 N.C. 89; Beck v. Bellamy, 93 N.C. 129; Weeks on Attorneys, sec. 222; Rogers v. McKenzie, 81 N.C. 164.
But the only question here is whether prima facie the attorney had authority, and not whether he had such as is incident to the relation of attorney and client. If there was prima facie authority, it follows, of course, that the burden of proving the contrary is upon the defendant, or the client. In Rogers v. McKenzie, supra, it is said by the Court: "If the existence of ample authority to act is assumed from the appearance of the attorney, with the sanction of the court (and ordinarily it could not be questioned), all the results must follow as if actual authority had been conferred, and among them the rightfulness of the defendant's payment."
It is the course of the King's Bench, said Holt, C. J. (1 Salk. 86), "when an attorney takes upon himself to appear, to look no further, but to proceed as if the attorney had sufficient authority, and to leave the party to his action against him if he has suffered by his default." (198) Jackson v. Stewart, 6 Johns, 3. And Chancellor Walworth said:
"As a general rule, when a suit is commenced or defended, or any other proceeding is had therein, by one of the regularly licensed solicitors, it is not the practice of the court to inquire into his authority to appear for his supposed client, nor, of course, to stop and ascertain the *Page 247 extent of his authority." Insurance Co. v. Oakley, 9 Paige, 196; Weeks on Attorneys, secs. 198, 199.
The cases we have just cited were approved by this Court in Rogers v.McKenzie, supra. We also refer especially to Morris v. Grier, 76 N.C. 410, and Hairston v. Garwood, 123 N.C. 345.
As said by Kent, C. J., in Denton v. Noyes, 6 Johns (N.Y.), 295: "If the attorney for the defendant be not responsible or perfectly competent to answer to his assumed client, the court will relieve the party against the judgment, for otherwise a party might be undone. I am willing to go still further, and, in every such case, let the defendant in to a defense of the suit. To carry the interference further beyond this point would be forgetting that there is another party in the case equally entitled to our protection." This statement of the law was quoted with approval and applied in the recent case of Ice Co. v. R. R., 125 N.C. 17. See, also, Peregoy v.Bank, 147 N.C. 295; Hairston v. Garwood, supra.
It is said by the Chief Justice in Westhall v. Hoyle, 141 N.C. 337: "The consent of counsel is stated in the judgment, and is binding upon the defendants in the absence of fraud and collusion," citing Hairston v.Garwood, supra. In Henry v. Hilliard, 120 N.C. 479, it appeared that an order or judgment was entered by consent and request of counsel, who it was alleged had no authority to act as an attorney for the party he professed to represent, and the Court thus dealt with the matter on motion, as here, to set aside the judgment: "It is not denied that both parties were marked as attorneys of record for the defendants. It seems that one of them has placed himself in a condition that calls for an explanation, and the other is repudiated. The movers in this matter seem to think that these facts are of benefit to them. But we cannot see that they are. Neither of them ever was counsel for the Hilliards (opposite parties), and their action does not fall under Gooch v. Peebles, 105 N.C. 411, and Arrington v. Arrington,116 N.C. 170. It is expressly stated in the order that it is made by consent of all the parties. We are bound by the statement as a matter of record. Woodworking Co. v. Southwick, 119 N.C. 611. It would be utterly destructive of all our ideas of the verity of records if they could be annulled by some one coming in after court and saying he did not agree that such an order should be made, although his attorney did."
Weeks on Attorneys at Law, after reviewing authorities, thus (199) states the principle: "Confession of judgment by counsel representing the case, with the knowledge of the party, is sufficient, without any special authorization to that effect. In attacking a judgment obtained by confession, especially after a long lapse of time, merits must be shown by the applicant. To justify a court of equity in interfering with *Page 248 a judgment at law on the ground of want of authority to appear, the evidence should show clearly and unequivocally that such judgment was fraudulently and wrongfully obtained without negligence or fault on the part of the judgment defendant. The burden of proof is with the complainant, and before he is entitled to relief he must fully establish what he alleges to be true. And this cannot be done for the first time on review. With this understanding, there seems to be no doubt but that a direct action in equity lies against a judgment obtained by the unauthorized appearance of an attorney. But it should be brought with all possible speed after the judgment is rendered. It has been the practice, sometimes by motion and sometimes in chancery, to relieve parties against judgments so rendered."
Price v. Ward, 25 N.J. L., 225, states the ancient and modern doctrines as follows: "Whether the want of authority in the attorney can be shown in avoidance of a judgment regularly entered, after an appearance or confession of judgment by an attorney of the court in which the judgment is rendered, is a question which has undergone much discussion, and is beset with serious difficulties. The weight of the ancient authorities is against the practice. If the attorney acted without authority the judgment was held, nevertheless, to be regular, and the defendant left to his remedy against the attorney. The appearance entered by the attorney, though not lawfully authorized, was held a good appearance as to the court," citing Keble, 86, 89; 1 Salk., 88; Com. Dig., "Attorney," B, 7; 1 Tidd's Prac., 65; Cro. Jac., 695; Smith v. Bowditch, 7 Pick., 137.
In Denton v. Noyes, 6 Johns, 305, Chief Justice Kent, after an elaborate review of the authorities, said: "The rule appears to me to be settled upon too much authority to be denied, and upon too much principle to be disturbed. Without it there could be neither safety to suitors nor trust in the profession." The action in Post v. Neafie, 3 Caine, 26, was brought upon a decree of a court of chancery. The decree, it appeared, was founded upon an agreement between the parties, signed by their attorneys. One of the objections to a recovery, urged by the defendant's counsel, was that the agreement on which the order was made was out of the ordinary course of the power of solicitors, and that no authority appeared for making it. The objection was not (200) noticed by any member of the court, excepting Justice Spencer, who said: "If this had been an action depending in a court of common law in New Jersey, and the attorney had confessed a sum of money due to the adverse party, it could never become a matter of inquiry, in a suit on the judgment, whether the attorney had acted by authority. If in this case the defendant's solicitor was unauthorized to enter into the agreement on which the decree was ultimately founded, *Page 249 it was examinable only in the court having original jurisdiction. It is to be intended that the solicitor acted by the direction of his client and for his benefit." Notwithstanding the weight of these authorities, "the current of recent American decisions," it is said in Price v. Ward, supra, "is against the rule, and in favor of admitting the authority of the attorney to be drawn in question. Osborne v. Bank of U.S. 9 Wheaton, 829, and other cases. The record is prima facie evidence that the attorney who appears to the suit or confesses the judgment is duly authorized for that purpose, and, in the absence of contradictory evidence, will be held conclusive. But the authority of the attorney may be drawn in question in pleading, and may be disproved by evidence." To the same effect is Bank v. McEwen,160 N.C. 414.
But as far as we need go, without indorsing all that we have quoted, is to hold that while the want of authority in the attorney may be shown, the burden of showing it is clearly on the party who attacks the consent judgment in a proper proceeding brought for that purpose.
If the parties had no authority to affect injuriously the rights of Wilbur Gardiner, son of the testator and the remainderman, he will not be prejudiced, in a legal sense, by the decree, as he is not a party to the suit. He may, perhaps, be entitled to intervene by motion in the cause or an independent civil action, as he may be advised, and assert his claim, and arrest or stay the payment of the fund to plaintiff by injunction or restraining order, until his ultimate rights may be determined. But this matter is not before us, and we neither express, nor intimate, any opinion with regard to it, nor will we consider the question whether he has a right, as now contended by defendant, to have the fund preserved in some way for his benefit and enjoyment when the life interest has expired, as, not being a party to this proceeding, he could ask for no such relief, and, besides, the facts as to the attorney's authority have not been stated in the case.
Affirmed.