Gilliam v. . Saunders

Brogden, J. In 1799 the General Assembly of North Carolina created an appellate court, consisting of the Superior Court judges, who, of *209 course, beard and adjudicated appeals from tbeir own judgments. Tbis statute was continued in force by chapter 12 of tbe Laws of 1801, wbicb expressly provided, among other things, that “no attorney should be allowed to speak or admitted as counsel in the aforesaid court.” Doubtless it was supposed that, if attorneys were permitted to appear in the Appellate Court, by alertness of mind or -smoothness of tongue, they would either lure the judgment of that high tribunal or perhaps corrupt the morals of the distinguished jurists. At any rate, attorneys were not allowed to appear in the Appellate Court of that day or to champion the cause of their clients therein. While that absurd barbarism has been abated, this Court, as constituted in 1819, has continuously held that an attorney, however friendly the relationship of the parties, cannot appear even colorably for opposing litigants. Apparently the question was first considered in Moore v. Gidney, 75 N. C., 34. The Court said : “But it is denied that the counsel of the plaintiff acted as the defendant’s counsel, farther than in drawing up her answer; and we are satisfied that no improper influence was intended. Yet the law does not tolerate that the same counsel may appear on both sides of an adversary proceeding, even colorably; and in general will not permit a judgment or decree so affected to stand if made the subject of exception in due time by the parties injured thereby. The presumption, in such cases, is that the party was unduly influenced by that relation, and the opposite party cannot take the benefit of it. It does not appear affirmatively in this case that Mrs. Moore, the defendant, was not influenced to her prejudice and thrown off her guard thereby. The purity and fairness of all judicial proceedings should so appear when drawn in question.” Molyneux v. Huey, 81 N. C., 106; Patrick v. Bryan, 202 N. C., 62, 162 S. E., 207. Moreover, the unamenable mandate of both law and morals forbids an attorney, in the homely phrase of the fields, “to run with the rabbits and bark with the hounds.” In the present case the issue of fact was sharply drawn. The evidence was conflicting. A jury heard the witnesses, observed their demeanor, weighed the testimony, and found the verdict. This verdict expressly declares that the attorney did not act for both parties and did not enter into a conspiracy to procure a fraudulent judgment. The cause of action alleged in the complaint, rests exclusively upon allegations of conspiracy in procuring the judgment, for that the attorney accepted service of summons at the request of defendant in the suit of Smitherman v. Saunders. This cause of action and the pertinent issues arising therefrom have been settled by the verdict of the jury. Hence, other aspects debated in the briefs have no application. Affirmed. ■