Opinion
No. 37221.
November 14, 1949.
1. Equity — equity procedure — setting aside consent decree, when no such consent had been given.
When a decree has been entered as a consent decree, and it is subsequently shown by petition supported by ample evidence that one of the parties adversely affected by the decree had not in fact consented to its terms as entered, and was excusably absent when entered, the action of the chancellor in setting it aside and reinstating the cause on the docket as a triable case will be upheld.
Headnote as approved by McGehee, C.J.
APPEAL from the chancery court of Perry County; J.K. TRAVIS, Special Chancellor.
Ben Stevens and L. Barrett Jones, for appellant.
We submit that the court was without power to set aside the decree of June 18, 1948, which was rendered in Vacation by the Vacation decree of July 9, 1948. See Beard v. McLain, 117 Miss. 316, 78 So. 184, where the court fully discussed the powers of the chancellor with reference to vacation hearings.
We also rely upon McIntosh v. Munson Road Machinery Company, 167 Miss. 546, 145 So. 731. In that case the court held, first, that a judgment by default, even with a plea on file, was not void, and then held that a judgment imports verity, and then finally held that a trial court cannot, at any subsequent term, reverse or annul a judgment for mere errors of law.
Also in this connection see Strain v. Gayden, 197 Miss. 353, 20 So.2d 697; Bates v. Strickland, 139 Miss. 636, 103 So. 432; Hurst v. Gulf States Creosoting Company, 163 Miss. 512, 141 So. 346, where the court said that a party seeking to set a judgment aside must show meritorious claim or defense, which none of the defendants in this case pretended to show on the hearing of the motion to vacate the decree of June 18.
It is to be noted in this case that the motion of the defendants to vacate the decree of June 18 does not charge any over-reaching or fraud on the part of the complainant, but relies nearly altogether upon the charge that appellant refused, subsequently to the entry of the decree, to carry out an alleged oral agreement made with the appellees. Therefore, the line of decisions holding that a judgment will be set aside for fraud in obtaining it cannot be invoked by appellees.
We invoke the further principle that a court of equity will not relieve a party from a judgment which he might have prevented but for his own negligence. See Brunner v. Planters Bank, 23 Miss. 406; Hamilton v. Moore, 32 Miss. 625; Hiller v. Cotton, 48 Miss. 593; Max N. Tobias Bag Company v. Delta Cotton Oil Company, 193 Miss. 873, 11 So.2d 210; Newman v. Morris 52 Miss. 402. We submit that this last case is squarely in point on the proposition that a judgment once entered with the knowledge and consent of attorneys cannot thereafter be repudiated by the client. See also McRaney v. Coulter, 39 Miss. 390.
The court erred in sustaining the objection of the appellees to the question asked Mr. Melvin by counsel for appellant, as shown at page 136 of the record.
We submit that the attempt of appellant to show that the appellee, Clark, had taken a position in another case pending on the same docket just opposite the one he was taking in this case was pertinent to the issue.
Our reason for this contention is that the evidence would have gone to show that Clark had a reason for wanting a final decree entered on June 18, 1948, and that for that reason neither he nor his attorney made any objection to the decree, notwithstanding it was submitted to them before its entry. The motion to vacate of necessity depended, insofar as the facts were concerned, or to be more exact, the proper construction of the facts was concerned, on what the court believed the intention of the parties was, and the appellant had a right to show Clark's intentions by any competent proof.
The court erred in overruling the motion of the appellant to exclude all of the testimony heard on the motion to vacate the decree, as shown by page 178 of the record.
In 34 Corpus Juris, under the subject "Judgments", paragraph 437, the rule is laid down in the last sentence of that paragraph as follows: "The only remedy after the term for irregular and erroneous, as distinguished from void, judgments is usually by new trial, review, writ of error, or appeal, as either may be appropriate and allowable by law, or by some other mode specially provided by statute." See also Id. Paragraphs 440 and 443.
It is to be observed that whatever remedy appellees may have had to set aside the decree of June 18 is not by motion, but by direct bill in equity on whatever grounds they might have conceived their rights to rest, and it is to be further observed that in this state there are no statutes authorizing the court to correct a judgment of any kind except for mere clerical errors. Of course, until the court has adjourned, the court has full power to set aside any judgment or decree, and that point is not involved here.
We submit that a vacation hearing ends, so far as the end of the term rule is concerned, when a decree is entered, and the cause heard before the court in vacation, and that thereafter the court has no further power in either vacation or term time to either modify, vacate or set aside its formal decree on the merits rendered in vacation. In other words, when this decree was entered on June 18, 1948, in vacation, that ended the power of the court to further hear the cause, for the vacation hearing ended that day.
Melvin Melvin, and C.C. Smith, for appellee, J.C. Clark.
A decree of the chancery court may be set aside on a motion seasonably made in vacation under peculiar and exceptional circumstances. We are cognizant of the general rule that a court has no power to set aside its judgments and decrees at a subsequent term but our court has held time and time again that under peculiar and exceptional circumstances equity has the inherent power to intervene and set aside or vacate its decree. The instances and circumstances adjudged by the authorities in our state and in which this power may be exercised are as follows: Mistake, accident, fraud, misunderstanding, misconception of the case, inadvertence, surprise, excusable neglect, decree as entered on the record of the court does not accord with that intended to have been entered, mutual mistake or misunderstanding of the parties, or a mistake of the court arising from misinformation or misunderstanding as to matters of fact.
See 49 Corpus Juris Secundum, page 499, Section 278; also Sections 279, 280, 281 and 282, pages 499-511; Griffith's Mississippi Chancery Practice, Section 618, page 699-700; 31 Am. Jur., Section 734 through 743, pages 279-285; Webster et al. v. Skipwith, 26 Miss. 341; Cotton et al. v. McGehee, 54 Miss. 621; Newman v. Taylor, 69 Miss. 670, 13 So. 831; Germain v. Harwell, 108 Miss. 396, 66 So. 396; Wilson v. Town of Handsboro, 99 Miss. 252, 54 So. 845; Truly v. Wanzer, et al., 46 U.S. Supreme Court Reports, 140; Brown v. Wesson, 114 Miss. 216, 74 So. 831; Corinth State Bank v. Nixon, 144 Miss. 674, 110 So. 430; Weems v. Vowell, 122 Miss. 342, 84 So. 240; Robertson v. Aetna Insurance Company, 134 Miss. 398, 98 So. 833; Harper v. Barnett, 16 So. 533.
Appellee herein hastens to state that we do not believe and do not desire to infer, suggest or impute that any of the parties to this suit or any of their attorneys intended to commit any act of fraud or improper professional conduct.
It is our belief and best judgment that there was an unfortunate misunderstanding among the attorneys as to what the agreement was upon which the vacated and supposedly agreed upon decree was based which led to a misconception of the facts that existed and caused the acting chancellor to enter a decree that would not have been entered had not such misunderstanding and mistake intervened. This is the exact type of factual situation which our court has repeatedly held that equity has the power and jurisdiction, in term time or vacation, to apply the proper remedy by setting aside the decree founded upon mistaken facts which would cause innocent persons to suffer. Griffith's Mississippi Chancery Practice, Section 618, page 700; Robertson v. Aetna Insurance Company, 134 Miss. 398; Webster v. Skipwith, 26 Miss. 341; Germain v. Harwell, 108 Miss. 396; Brown v. Wesson, 114 Miss. 216, and Weems v. Vowell, 122 Miss. 342.
That the vacated decree dated June 18, 1948 was a void decree and could have been set aside in vacation or any other seasonable time.
It is readily apparent from the evidence in this cause that the decree dated June 18, 1948, and thereafter vacated by the acting chancellor was presented in the nature of an agreed or consent decree and the chancellor particularly raised this question and assured himself of this fact before he signed same on that date. All of the evidence in the record revolves around the questions as to what the agreement was, whether the agreement was properly incorporated in the final decree dated June 18, 1948 and whether the attorneys for appellee, Mr. Clark, agreed to and consented to the entering of the decree in the form in which it was submitted to the chancellor. It is undisputed and the record will conclusively show that the attorney for the appellant drew the original decree which was corrected and changed in several aspects by the attorneys for the other appellees and was submitted on said date of June 18, 1948, by the attorney for the appellant to the chancellor as agreed upon and consented to by all parties but that the decree on its face shows that it was only consented to by the attorneys for the other appellees only. That the attorneys for appellee, Mr. Clark, had definitely raised a question as to the correctness of the decree and whether it properly incorporated all of the agreements upon which the settlement of the case was based. We respectfully submit that it is elementary that a decree presented to a chancellor on the basis that it is in the nature of a consent decree when in fact as later shown a party to the suit and effected by the decree had not in fact consented to the decree and the particular form and substance thereof then such a decree is void. See 31 Am. Jur. Sections 458-461, pages 105 and 106 for general requisites of a consent decree. Griffith's Mississippi Chancery Practice, Section 618, page 699; Yazoo and M.V.R.R. Co. v. Lawler, 130 Miss. 421, 94 So. 219; J.J. Newman Lumber Co. v. Pace et al., 137 Miss. 504, 94 So. 570.
The evidence fully discharges all attorneys for appellees of negligence of duties and laches. Counsel for appellant suggests in his brief on page 6 thereof that if appellees were entitled to any relief under the facts that we should not have taken immediate and prompt action so as to give all parties notice of the misunderstanding and avoid further injury to the parties to the suit and innocent purchasers but that we should have filed a direct bill in equity which would normally be heard on its merits at the next term of the court approximately five (5) months later. On the other hand appellant charges in his brief that the attorneys for appellees are guilty of negligence just prior to and in a matter of hours preceding their action to set aside said decree. We respectfully submit that the evidence does not justify such a charge.
A motion was the proper and appropriate remedy under the facts of this case.
Appellant contends that a motion to set aside the decree was not the proper remedy but a direct bill in equity is the correct procedure. We submit that the rule is in Mississippi, and it is a just, fair, and equitable rule, that it makes no difference in circumstances like that set forth in the record of this case whether the decree is vacated on an original bill, bill of review, petition or motion. The court looks to the substance of the matter rather than to mere names and formality and will not permit a wrong to be suffered by innocent persons because of the formality of pleadings. As we have heretofore stated a simple motion made promptly after the mistake and misunderstanding was discovered was the prompt and correct manner to bring the matter to the attention of all parties concerned before other possible innocent people may suffer from the unfortunate entering of the decree under the particular circumstances. This manner of proceeding hurt no one but placed the parties promptly back into the same status that they were before the decree was rendered.
Griffith's Chancery Practice, Sections 643, 644, pages 746-747; Davis v. Davis, 135 Miss. 214, 99 So. 673. We cite the case of Surety Insurance Company v. Treadwell, 113 Miss. 189, 74 So. 143. We also cite the case of Hester v. Bishop, 193 Miss. 449, 10 So.2d 350.
The case of Brown v. Wesson, 114 Miss. 216, 74 So. 831, thoroughly discusses the use and purpose of a bill of review and original bill in equity. On the use of motions in circumstances such as this case presents we also cite Watts v. Watts, 123 Miss. 812, 86 So. 353.
The court actually allowed the testimony complained of by counsel for appellant because of exclusion at one time during the hearing.
We call attention to the court that the information that appellant desired to bring out was allowed by the court during Mr. Myers' testimony and it was fully considered along with all the other evidence by the chancellor.
We respectfully submit that the cases cited by appellant and upon which he rests his appeal are not authorities for the facts set forth in the record before this court.
In fact, three of the cases cited by appellant specifically state that a court of equity may have given relief under circumstances such as shown in this record. We refer to McIntosh v. Road Machinery Company, 167 Miss., third paragraph 552; Strain v. Gayden, 197 Miss. 353, second paragraph 363; Hamilton v. Moore, 32 Miss. last paragraph 634.
Watkins Eager, for the other appellees.
As the rights and interest of the appellees herein are not to be affected one way or another by the decision of this honorable court in this cause, we do not deem it necessary or appropriate to brief or argue the legal questions involved and presented by the assignment of errors filed by the appellant herein. It was our sincere and honest opinion at the time of the hearing of said motion to set aside the decree rendered June 18, 1948, that it would be the fair, just and equitable solution to the matter and would place the parties back in the same status that they were only a short time prior thereto when said decree was signed and would work no serious injury to the appellant and that is still our best judgment on the matter. We therefore reaffirm our opinion and adopt and ratify the brief of appellee, Julius C. Clark.
This appeal is from a vacation decree setting aside a former decree which had been rendered in vacation in the cause. The suit was brought by the appellant, Harvey Myers, to cancel as clouds upon his title to forty acres of land a tax sale thereof to the state, a forfeited tax land patent from the state to the appellee, Julius C. Clark, a deed of conveyance from the said patentee in favor of George C. Schoonmaker of a one-fourth undivided interest in the oil, gas, and other minerals in the land, and an oil and gas lease in favor of the Sinclair Wyoming Oil Company on the ground of the alleged invalidity of such tax sale, patent, and the subsequent sales made pursuant thereto. The defendants denied in their answer that the tax sale was void and plead the bar of the limitation under Chapter 196, Laws of 1934, Section 717, Code of 1942, against the bringing of the suit.
When the cause came on for trial on the 31st day of May, 1948, at the regular term of the Court, the attorneys of record for each of the respective litigants became advised that the complainant and the defendant, Julius Clark, had agreed upon a compromise and a settlement of the suit under such terms as would leave in full force and effect the mineral deed in favor of the defendant, Schoonmaker, and the oil and gas lease in favor of the defendant, Sinclair Wyoming Oil Company, the complainant Myers having agreed to execute the proper instrument so as to fully ratify and confirm the said conveyances.
This appeal arises out of a disagreement between the complainant Myers and his attorney and the defendant Clark and the attorneys representing him and the other defendants, as to what the defendant Clark was to get out of the agreed compromise and settlement of the case, the latter contending that the said Clark was to keep the land and one-fourth of the minerals, and that the oil and gas lease was to be ratified and confirmed by the complainant as written, which lease by its terms made the annual rentals thereunder payable to Clark, whereas the complainant Myers contends that the compromise and settlement had contemplated the cancellation of the tax sale and patent so as to vest in him the title to the land, and all the minerals, subject to the interest of Schoonmaker therein, and subject to the oil and gas lease in favor of Sinclair Wyoming Oil Company, and that he was to receive the rentals under the oil and gas lease.
The rendition of the final decree was postponed at the regular term of the court until the State Land Commissioner could be made a party to the suit, and with the result that when this had been done a final decree was rendered in the cause on June 18, 1948, in vacation, but which did not embrace the agreement as understood by the defendant Clark, his attorneys, and the attorneys representing the other defendants. Consequently, a petition was presented to the chancellor on June 25, 1948, to set aside the decree of June 18th for the reason that it adjudicated the owership of the land and all the minerals to be in the complainant Myers, subject to the mineral deed and the oil and gas lease aforesaid, and contained the provision that the complainant Myers was to ratify and confirm the said instruments then outstanding. By the terms of the decree as rendered, the defendant Clark was bereft of any claim or interest in the land and minerals which he had asserted in his answer to the lawsuit, and of all interests that he claimed he was to receive in virtue of the compromise and settlement of the case.
The hearing on the rendition of the decree in vacation was postponed from June 11th to June 18th with due notice to the attorney for defendants other than Clark. Copies of the decree of June 18th were furnished to the attorneys for the defendants prior to June 11th, and it would seem that the complainant Myers did not make a full disclosure to his attorney of the terms of the settlement which is alleged to have been agreed upon with the defendant Clark, since his attorney testified at the hearing of the motion to set aside the decree that he had no knowledge of the terms of the agreement between his client and the defendant Clark at the time of the conferences, which lead up to the signing of the decree of June 18th, but the testimony of the several attorneys in the case and of their clients is in conflict as to what they all understood. But it is also contended by one of the attorneys for the defendant Clark that he was assured on the morning of June 11th by counsel for the complainant that whatever agreement had been made between Myers and Clark as to a settlement would be carried out, and hence the attorneys for Clark did not appear before the chancellor on that day.
The matter of the signing of the decree was thereupon delayed until June 18th, and of which date for the presentation of the decree to the chancellor due notice was given to the attorneys for the other defendants but not to the attorneys for Clark.
On June 8th the chancellor signed the decree as being "in the nature of a consent decree" thinking that it embodied the real agreement between the parties. After the signing thereof, and when the attorney for the defendants other than Clark undertook to procure the execution of the necessary instruments for the ratification and confirmation of outstanding mineral deed in favor of Schoonmaker and the oil and gas lease in favor of Sinclair Wyoming Oil Company, he learned from Clark that he and the complainant Myers were in disagreement as to the terms of the compromise and settlement that was to be made, and that Clark therefore objected to the decree as signed. Hence, this attorney on behalf of his clients joined in the petition with Clark and his attorneys to have the decree set aside. Upon the presentation of the petition in that behalf on June 25th, the hearing thereon was postponed to July 2nd and then to July 9th without objection from any one, when the chancellor after hearing the testimony of all of the attorneys and their clients reached the conclusion that the decree should be set aside and that the cause should be reinstated on the court docket the same as if no decree had been rendered. This was accordingly done, and on this appeal the appellant Myers has challenged the power and authority of the chancellor to set aside in vacation the final decree rendered on June 18th in vacation.
Section 1228, Code of 1942, as amended by Chapter 274, Laws of 1946, conferred upon the chancellor the right to try any such cause, deliver opinions, and make and sign decrees therein in vacation. The case of Ex parte Stanfield, 98 Miss. 214, 53 So. 538, is authority for the proposition that a chancellor may not in termtime set aside a final decree rendered in vacation in the removal of disabilities of minority on the ground that such final decree was improvidently rendered, but the case is not authority against the contention of the appellees that a chancellor has authority to set aside a purported final decree where the same has been rendered by him under a mistaken belief that it represents the true understanding and agreement of the parties as to a compromise and settlement of the case.
In the case of Watts v. Watts, 123 Miss. 812, 86 So. 353, it was held to be well-settled law in this state that a judgment or decree, procured by the fraud of a party in whose favor it is rendered, may be set aside after the adjournment of the term, and that it is immaterial whether the fraud is attacked by original bill or by motion or petition. If the complainant Myers was guilty of fraud, either in fact or in law, in failing to disclose to his attorney the true agreement between himself and the defendant Clark, or if the decree complained of was rendered because of a mistake or misunderstanding among the parties as to what the decree should be, and it seems that such was the case, the chancellor had authority when so finding to set the same aside. Griffith's Mississippi Chancery Practice, Sections 633, 642, and 644. (Hn 1) There was abundant testimony, given by the defendant Clark and three attorneys to warrant such a finding as a basis for setting aside the decree on the ground that it did not represent the real agreement reached between him and the defendant Clark, as stated by them at the conference when at least the attorneys for the defendants were present. In any event we would not be justified in holding that the chancellor was manifestly wrong in such finding.
The decree of the chancellor setting aside the purported final decree and reinstating the cause on the docket as a triable case must therefore be affirmed and the cause remanded.
Affirmed and remanded.