Smith v. Land & Mineral Co.

Clarkson, J. We do not think the exception and assignment of error made by Susan Smith, “to the signing of the judgment” by the court below, can be sustained. The plaintiff, Susan Smith, tendered no request for findings of fact and failed to except to any of the findings of fact set forth in the judgment. There is no allegation made by Susan Smith that the consent judgment was obtained by fraud or mutual mistake, but does charge that it was made without her consent. The court below found the facts fully upon which the judgment was based and among other things that Susan Smith received the benefit of a portion of the money and a portion was invested with her knowledge and consent. That she was advised of the consent judgment and ratified the settlement. She was advised by her husband, G. W. Smith, on the day the payment was made that it was “in full compromise and settlement” of the action. In Dennis v. Redmond, 210 N. C., 780 (784), is the following: “The only exception and assignment of error made by plaintiff is ‘to the foregoing judgment.’ A case where the facts are similar in all respects to the present one is that of Ingram v. Mortgage Co., 208 N. C., 329. At page 330 it is said: ‘The first exception is to the judgment itself. This judgment is regular upon its face, and the facts found by the trial judge are sufficient to support the decree.’ Consequently, the first exception must fail, Warren v. Bottling Co., 207 N. C., 313; Moreland v. Wamboldt, ante, 35. The second exception is ‘to the finding and signing of the order of the finding of facts. It is to be observed that the plaintiff requested no findings of facts and there is no specific exception to any particular finding of fact. Obviously, some of the findings of fact are necessary and beyond question. The Court is not endowed with the *350 gift of prophecy, and, therefore, is unable to determine which particular Ending of fact is objectionable to the plaintiff. Hence, the second exception must likewise fail.’” Bank v. Duke, 187 N. C., 386; Hickory v. Catawba County, 206 N. C., 165 (170); Moreland v. Wamboldt, 208 N. C., 35 (36); Ingram v. Mortgage Co., 208 N. C., 329 (330). In Gardiner v. May, 172 N. C., 192 (194-5), citing many authorities, it is said: “Where parties solemnly consent that a certain judgment shall be entered on the record, it cannot be changed or altered, or set aside, without the consent of the parties to it, unless it appears, upon proper allegation and proof and a finding of the court, that it was obtained by fraud or mutual mistake, or that consent was not in fact given, which is practically the same thing, the burden being on the party attacking the judgment to show facts which will entitle him to relief.” In Banking Co. v. Bank, 211 N. C., 328 (329), citing many authorities, we find: “In a motion of this kind, where the correctness of the court’s ruling is dependent upon -facts aliunde or dehors the record, a request should be made that the facts be found, otherwise it will be presumed that they were determined in support of the judgment.” Cason v. Shute, 211 N. C., 195; Boucher v. Trust Co., 211 N. C., 377. Do the facts support the judgment of the court below? We think so. The presumption is that they do. There is much evidence in the record to support the judgment to which no exception was taken and the court below found sufficient facts to justify a refusal to set the judgment aside. We find in McIntosh, N. C. Prac. and Proc. (in Civil Cases), at p. 772: “Whether the consent of an attorney in the case is sufficient to bind the client in a consent judgment will depend upon the authority of •such attorney; ‘every agreement of counsel entered on record and coming within the scope of his authority must be binding on the client.’ The authority of the attorney extends to all matters necessary to the protection and promotion of the rights of his client, but he has no authority to waive any of his substantial rights, nor to compromise the case without the consent of the client, and a consent judgment would be a final determination of the rights beyond the power of the attorney.” Bank v. McEwen, 160 N. C., 411. The court below had sufficient evidence on which to base the judgment rendered, including the authority given by Susan Smith to her attorneys, “And they hereby grant and authorize the said parties of the Second Part to act for them in relation thereto and to bring any action they •deem necessary in their name, and to settle same by judgment or compromise by consent.” The plaintiff gave her attorneys broad powers. From the record, the trouble seems to be not so much her consent and ratification of the judgment but from the fact that her attorneys made the check to her husband *351 (wbo does not repudiate bis consent), but be bas given ber very little of tbe money wbicb was a part of tbe compromise. Her busband bad an incboate right to curtesy and bolds most of tbe proceeds of compromise wbicb belongs to ber, and wbicb sbe should collect from him and not defendant, wbo bas paid out its money in good faith. For tbe reasons given, tbe judgment of tbe court below is Affirmed.