It is difficult to discover in the facts ascertained and established at the hearing any evidence, or indication even, of "mistake, inadvertence, surprise or excusable neglect," the statutory condition for the exercise of the invoked power, either in the verdict or rendition of judgment. Both were the result of deliberation and fully understood by caveators' counsel and entered under the supervision of the court, in a proceeding in rem, where it is the duty of the judge to see that everything is regularly and properly done in establishing the testamentary paper.
But the act in conferring power confines its exercise to judgments (133) rendered under the specified conditions, and does not embrace such as necessarily follow the verdict, would be of no which, without at the same time disturbing the verdict, would be of no advantage to the party, for it must again be entered in conformity to the jury findings. To vacate both is necessary to afford the desired relief, and this would be to grant a new trial, which can only be done at the term when it took place. The Code, sec. 412, par. 4; England v. Duckworth,75 N.C. 309.
But assuming the remedy sought to be appropriate, the refusal of the judge in the exercise of an admitted discretion is not the subject of appellate revision.
In Hudgins v. White, 65 N.C. 393, Reade, J., says: "After hearing the evidence and finding the facts it is discretionary with the judge to set aside the judgment or not, and from the exercise of his discretion there isno appeal."
This is said in a case where the judge below refused to vacate, while it is manifest if he had done so, upon facts which did not bring the case within the scope and meaning of the act, his ruling would have been erroneous and open to correction on appeal.
Somewhat similar language is used by Bynum, J., who says that "under the section of the C.C.P. cited (133) the application was addressed to the discretion of the court and his decision thereon was final, whether refusing or allowing the motion."
In a more recent opinion Merrimon, J., thus reasserts the same proposition: "This Court has authority to determine what constitutes `mistake, inadvertence, surprise or excusable neglect' under The Code, sec. 274; but it has no authority to review or interfere with the discretion exercised by the judge of the Superior Court under this section." Foley v.Blank, 92 N.C. 476.
But the complaint preferred in the application, and supported by oath, rests upon an imputed mismanagement of caveators' own counsel, and their want of authority to assent to what was done. This is not sustained by the facts, for they show that resistance was not made, only *Page 134 because there were no grounds upon which it could be offered, (134) and would have been unavailing if offered. If there had been fraud alleged in the agreement of opposing counsel (and this the appellants disclaim, and say they impute nothing wrong to their counsel in conducting the defense) the redress would have been open only in an action to impeach the judgment of the court. Still the conduct of the case by caveators' counsel would, in the absence of connivance, be binding upon their clients, and it would be a dangerous innovation in judicial proceedings to hold otherwise.
In the words of Nash, J., in reference to the authority of counsel retained in a case: "By his acts and agreement made in the management of the case the plaintiff was bound." Greenlee v. McDowell, 39 N.C. 481.
Not less explicit is the language of Merrimon, J., in Branch v. Walker,92 N.C. 87, where he says of an attorney that "as soon as he is duly retained in an action or proceeding he has, by virtue of his office,authority to manage and control the conduct of the action on the part of his client during its progress, and subject to the supervision of the court," etc.
"As between the client and opposite party, the former is bound by every act which the attorney does in the regular course of practice, and without fraud or collusion, however injudicious the act may be." Weeks on Att., sec. 222, and cases cited.
The ruling of the court must remain. There is no error.
No error. Affirmed.
Cited: Winborne v. Johnson, 95 N.C. 48; Clemmons v. Field, 99 N.C. 402, 3; Weil v. Woodard, 104 N.C. 98; Taylor v. Pope, 106 N.C. 270;Lewis v. Blue, 110 N.C. 423; Flowers v. Alford, 111 N.C. 250; Brown v.Rhinehart, 112 N.C. 777; Harrill v. R. R., 144 N.C. 544; Hall v.Presnell, 157 N.C. 294; Mann v. Hall, 163 N.C. 60; Gardiner v. May,172 N.C. 197; Chemical Co. v. Bass, 175 N.C. 430.