dissenting:
I respectfully dissent from the majority opinion. While the statement of the law as contained in Syllabus Points 1 and 2 may be correct, I feel that they do not apply to the facts of this particular case.
There are two issues in this case: namely, (1) Did Friedman, the attorney for Kelly and the Vickers heirs, act under a mistake and without authority in entering the dismissal order, and (2) did the circuit court abuse its discretion in refusing to set aside the dismissal order? The majority opinion would set aside the dismissal order on the basis of a misunderstanding or mistake on Friedman’s part which would bring this under the provisions of Rule 60 (b) R.C.P. I do not believe that this conclusion is supported by the facts and the circumstances.
Kelly, on his own behalf, and Leroy Vickers, ostensibly in behalf of the Vickers heirs, were the moving parties in the employment of Friedman, their attorney, and in the effort to set aside the Kelly will. It appears that they conferred with their attorney during the negotiations on the settlement and compromise of the will case and that they *775were present at the time the proposed settlement was announced to them by their attorney and that both Kelly and Leroy Vickers at that time signed a release showing their concurrence and agreement to the compromise and dismissal of their suit. If they had any questions as to the compromise or did not understand its terms, as they now contend, they should have inquired of their attorney at that time. Therefore, this is not a case in which Friedman, as attorney for Kelly and the Vickers heirs, acted under a mistaken belief that a compromise settlement had been agreed to by his clients, since all the facts surrounding their negotiations and conversation indicate that in fact they had approved the settlement agreement.
To adopt the contention of Kelly and the Vickers heirs as to their claimed understanding of the settlement, which is that Kelly should receive one-third, the Vickers heirs should receive one-third and Sallie Belcher, one-third, leaving the Maywood Belchers, the parties who would have taken the property under the terms of the will in question, with nothing, is no compromise of the matter between the contesting parties and is incredulous on its face.
I do not believe that the Circuit Court of Kanawha County was guilty of abusing its discretion in refusing to set aside the dismissal order but, to the contrary, I believe that the evidence in this case is sufficient and adequate to support the ruling of the circuit court.
This Court has held in Intercity Realty Company v. Gibson, 154 W.Va. 369, 175 S.E.2d 452 (1970), that a motion to set aside a default judgment is addressed to the sound discretion of the court and the court’s ruling will not be disturbed unless there is a clear showing of abuse of such discretion. In the Intercity Realty case, the default judgment arose through no fault or neglect of the party but rather through her attorney’s inaction, and without the client’s knowledge. In the present case, Kelly and Vickers knew, or should have known, that their action was to be dismissed as a part of the compromise settlement.
*776The majority opinion will seriously affect the validity and finality of dismissal orders in compromise cases. I am fearful for the plight of attorneys in the future who desire to enter into a compromise settlement of a case, since it will permit clients, after agreeing to* a compromise settlement of an action and after their attorney has acted in reliance upon the approval of their clients, to then seek to have the dismissal order set aside, under the ruling of the majority as it applies Rule 60 (b), R.C.P., on the basis of mistake or any other reason justifying relief, simply because the clients later become dissatisfied with the terms of the compromise to which they had previously agreed.
For the foregoing reasons I would have affirmed the judgment of the Circuit Court of Kanawha County.
I am authorized to say that Judge Caplan concurs in the views expressed in this dissent.