Opinion
(Decided 15 May, 1900.)
Motion to Set Aside Judgment — Record Evidence — Attorneys of Record — Records Import Verity.
1. While the finding of facts by the trial judge is final, the judgment applying the law to these facts is reviewable.
2. When the record proper differs from the statement of the case on appeal, the former must control.
3. Where an order of the court recites that it was made by consent of all the parties, this Court is bound by the statement, and neither party will be heard to say that his attorney was unauthorized to consent to the order.
4. An attorney once appearing, continues to appear for all purposes until the judgment is satisfied, unless he retires in the meanwhile by leave of the court.
5. Where the recitals of record show that a party has been represented by attorney and has had the benefit of his professional services in the conduct of the cause, including the trial, the legal inference is that the attorney was the attorney of the party, and an averment to the contrary will not be permitted two or three years after final judgment.
CLAIM AND DELIVERY PROCEEDINGS and motion to set aside a judgment rendered therein by Norwood, J., at Fall Term, 1897, in favor of plaintiff, heard before Coble, J., at Fall Term, 1899, of SWAIN. The ground of the motion was that the judgment was rendered out of term time, under what purported to be a consent order, the defendant having no counsel. The motion was allowed, and plaintiff appealed.
Merrimon Merrimon and T. H. Cobb for plaintiffs.
No counsel contra.
DOUGLAS, J., dissents.
The plaintiff instituted this action on 9 (546) September, 1896, in the Superior Court of Buncombe County, against the defendant Teague, alone, sheriff of Swain County, returnable to December Term, 1896, for certain property and for damages, which property was held by the defendant by levy under certain executions in his hands. At the return term, to wit, 8 December, 1896, the defendant signed and filed an affidavit for the removal of said action to Swain County for trial, suggesting that the execution and attaching creditors ought to be made parties. The action at that term was removed to Swain County. At Spring Term, 1897, of court in Swain County, on motion of counsel for the defendant, several other persons were made parties, and time was allowed to file an answer. On 8 July, 1897, the defendant Teague filed a verified answer; on the back thereof was endorsed Bryson Black and F. C. Fisher, attorneys for defendants. At August Special Term, 1897, "defendants allowed to answer" was entered, and Bryson Black for defendants. A notice by plaintiff addressed to Fred. Fisher and T. D. Bryson to take depositions was served by defendant Teague, and an agreement to open said depositions without prejudice was signed by plaintiff's attorney, and by Bryson Black and F. C. Fisher, "attorneys for defendants." At Fall Term, 1897, on the docket, this entry appears: "Counsel for both parties waive trial by jury and consent that the court may try the case and find the facts and adjudge the law."
Norwood, J., who tried the case, says in his finding of facts that both parties agreed in open court that the judge who tried the cause, "might take the records and testimony and may find the facts and sign the judgment in Haywood County after the circuit closes, and that said action of said judge and said judgment so rendered may be entered upon the records of Swain County as of this Fall Term, 1897, of the (547) Superior Court of Swain County." Judge Norwood accordingly tried the case at chambers and filed his judgment against defendants, 21 December, 1897. Notice of appeal was given, but at November Term, 1898, of the court in Swain County, the judge presiding entered his judgment: "That said appeal has been abandoned and the same is hereby dismissed." At said Spring Term, 1897, forty-one additional persons were made parties defendant. His Honor finds as a fact that Bryson Black were never employed by defendant Teague, and that Fisher was never employed by any of the parties except Summers and Conley, and that Teague did not employ any attorney to represent him in said action, also that Fisher was employed by Bryson to go to Asheville to make a motion on said affidavit of Teague for removal of said cause from Buncombe to Swain County. After Teague's appeal was dismissed, he made a motion, at Fall Term, 1899, to set aside the judgment of Norwood, J., on the ground that he had never consented for that judgment might be rendered at chambers outside of Swain County. His Honor, Judge Coble, at Fall Term, 1899, after finding the above facts, set aside the judgment as to said Teague and no further, and the plaintiffs appealed to this Court.
On the trial in Swain County before Norwood, J., the defendant Teague was examined as a witness.
In reviewing this judgment we do not assume to review the finding of the facts. Such finding by the judge below is final. The judgment applying the law to those facts is reviewable. Johnson v. Duckworth, 72 N.C. 244; Emry v. Hardee, 94 N.C. 787; Clegg v. Soapstone Co., 66 N.C. 391.
The defendant's contention is that the attorneys were never by him employed (and the judge so finds), and that the agreement that (548) Judge Norwood could render judgment in another county was not by his consent, and therefore the judgment is void as to him.
Looking through the record we find that when the motion for removal was made, and at Spring Term, 1897, of Swain Superior Court, on motion "of counsel for the defendant" to make new parties, the defendant Teague was the only defendant. On 8 July, 1897, the defendants file an answer verified by Teague and endorsed by Bryson Black and F. C. Fisher, "attorneys for defendants." On 9 November following, the defendant Teague, as sheriff, served a notice on Bryson "attorney for the defendants." Such entries were continued at the term when a jury trial was waived and until final judgment entered on 21 December, 1897.
The legal inference from these parts of the record is that said attorneys represented all the defendants, and this presumption can not be rebutted, two or three years after final judgment, by an averment of the principal defendant that he had never employed counsel. He was cognizant of the course of the case, including the trial, and had all the advantage and benefit of representation by counsel. Any other rule would not only disturb orderly procedure, but would be disastrous to the rights of third parties — as the assignee of the judgment in this case.
We have referred with some particularity to the record proper, in order to call the attention of attorneys to their duties in their close relations to the court. It is an easy matter for an attorney, appearing only for some of the parties, to so inform the court or to indicate it on the record.
An attorney once appearing, continues to appear for all purposes until the judgment is satisfied, unless he retires in the meantime by leave of the court. On this subject, Chief Justice Taney said, in U.S. v. Curry, 6 Howard (U.S.), 106: "No attorney or solicitor can withdraw his name after he has once entered it on the record without the (549) leave of the court. And while his name continues there, the adverse party has the right to treat him as the authorized attorney or solicitor, and the service of notice on him is as valid as if served on the party himself. And we presume that no court would permit an attorney who had appeared at the trial with the sanction of the party, expressed or implied, to withdraw his name after the case was finally decided. . . . And so far from permitting an attorney to embarrass and impede the administration of justice, by withdrawing his name after trial and final decree, we think the court should regard any attempt to do so as open to just rebuke."
The same principle is declared by this Court in Branch v. Walker, 92 N.C. 87; Walton v. Sugg, 61 N.C. 98.
Where an order of the court recites that it was made by consent of all the parties (the plaintiff and defendants in this case), this Court is bound by the statement, and neither party will be heard to say that his attorney was authorized to consent to the order. Henry v. Hilliard, 120 N.C. 479.
When the record proper differs from the statement of the case on appeal, the former must control. Threadgill v. Commissioners, 116 N.C. 616.
From this review we are led to the conclusion that there was error in setting aside the judgment rendered by Norwood, J.,
Reversed.
Cited: Teague v. Collins, 134 N.C. 63; Bank v. Peregoy, 147 N.C. 295; Stokes v. Cogdell, 153 N.C. 182; Bank v. McEwen, 160 N.C. 425.
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