Opinion
No. 29426.
May 18, 1931.
1. ATTORNEY AND CLIENT.
Attorney agreeing to entry of judgment against client is presumed to be acting with client's consent, and judgment is ordinarily conclusive.
2. JUDGMENT.
Showing of meritorious defense held insufficient to warrant setting aside of judgment entered with consent of defendant's attorney.
3. JUDGMENT.
Allegation, or proof, simply that defendant has meritorious defense, is insufficient to obtain setting aside of judgment.
4. JUDGMENT.
Facts constituting meritorious defense, to warrant setting aside judgment, must be set forth with sufficient detail to enable court to determine therefrom whether defense is meritorious.
APPEAL from circuit court of Adams county; HON. R.L. CORBAN, Judge.
Martin Brown, of Natchez, for appellant.
In the case of Southwestern Surety Ins. Co. v. Treadway 113 Miss. 189, 74 So. 143, this court held that in the cases of default judgments caused by inadvertence of the defendant or his attorneys, when there exists a reasonable doubt as to whether or not the default judgment should be vacated, that doubt should be resolved in favor of opening the case and hearing it upon the merits.
This same rule was announced in the case of Lee v. Spikes, 145 Miss. 897, 112 So. 588.
In the cases of applications to set aside consent decrees or agreed judgments, the rule is that applications to set aside pro confessos are addressed to the discretion of the court upon the circumstances of each particular case, and will, as a general rule, be granted if not productive of injurious delay and the applicant has not been culpably negligent.
Gwen v. Harris, Sm. M. Ch. 528.
Kennedy Geisenbeger, of Natchez, for appellee.
Even though the judgment entered by consent of counsel was not authorized by the defendant, it is not mandatory upon the court to set the judgment aside, but, in its discretion, it may refuse to do so and defendant's remedy is against his counsel.
Bradish v. Gee, Ambl. 229, 27 Reprint 152; Harrison v. Rumsey, 2 Ves. 448, 28 Reprint, 312, and 2 Dan. 1180.
Where it is necessary to show merits, it is not sufficient to allege in general terms that defendant has a good and meritorious defense to the action, or that plaintiff has a good or sufficient cause of action; the facts constituting the proposed defense or claimed cause of action, must be set forth in detail, so that the court may judge whether or not it is meritorious and sufficient.
34 C.J., page 335, sec. 551; 34 C.J., page 329, sec. 550; Fore v. Folson, 64 Howard, 282; Chastain v. Armstrong, 85 Ala. 215, 3 So., 788.
This is an action at law in which the appellee was the plaintiff and the appellant was the defendant. With the consent of his attorney, a judgment was entered against the appellant for something less than the amount sued for. On the day after the entry of this judgment the appellant filed a motion, praying that the judgment be set aside and the case tried on its merits, setting forth that the judgment was entered without his knowledge or authority to his attorney to agree thereto, and "that he has a meritorious defense to the claims and demands of the plaintiff." The evidence introduced in support of the motion discloses that the judgment was entered without the appellant's knowledge, and without his having authorized his attorney to agree thereto. The only evidence as to the merits of the appellant's defense to the action is that, when asked, "Have you, in your opinion, a meritorious case?" he answered, "Yes, sir."
An attorney, when agreeing to the entry of a judgment against his client, is presumed to be acting with the client's consent, and a judgment entered in accordance with such an agreement is ordinarily conclusive against the client. 6 C.J. 646; Bank of Glade Spring v. McEwen, Ann. Cas. 1914C, note at page 548; 15 R.C.L. 644. There are cases which hold that this presumption is rebuttable in a proceeding promptly instituted to set aside the judgment, and on a showing that the movant has a meritorious claim or defense, as the case may be. We are not here called on to determine whether or not this presumption is rebuttable; for, if it is, the effort to rebut it here must fail for the reason that there is no sufficient showing of a meritorious defense. Where it is necessary, in order to obtain the setting aside of a judgment, to show a meritorious claim or defense, as the case may be, allegation, or proof, simply that the plaintiff or defendant has a meritorious claim or defense, is insufficient; the facts on which the claim or defense is based must be set forth with sufficient detail to enable the court to determine therefrom whether the claim or defense is meritorious. Planters' Lumber Co. v. Sibley, 130 Miss. 26, 93 So. 440; Fore v. Folsom, 4 How. 282; Southwestern Surety Ins. Co. v. Treadway, 113 Miss. 189, 73 So. 143; Lee v. Spikes, 145 Miss. 897, 112 So. 588; 34 C.J. 335.
Affirmed.