Gilbert v. . James

Smith, C. J., after stating the foregoing facts. With this succinct narrative of facts, and of the action of the court, we proceed to consider and dispose of the exceptions shown in the record. 1. The defendant proposed to prove by a witness that the deceased attorney, J. A. Stephenson, in his life-time asked witness to become guardian to the infants, Franklin and Mary, and receive their share of the proceeds of sale, and that in the conversation he stated he was their attorney. This evidence, on objection, was rejected for incompetency. The declaration, as evidence of an antecedent professional employment in a cause then in progress, cannot be defended, as accompanying and explaining an act, for an agent’s declarations are not admissible to prove his authority. The agency must be first shown aliunde, before the declarations can be received to affect an alleged principal. Williams v. Williams, 6 Ired., 281; Grandy v. Ferebee, 68 N. C., 356; Francis v. Edwards, 77 N. C., 271. These tenants were then respectively of the age of 17 and 14 years, and had no legal capacity to contract or constitute an agent for the disposition of their property, and it was not proposed to prove employment by the mother on their behalf, acting as guardian ad litem. The excluded evidence is but mere hear-say, and is not *248 admissible as part of the res gestss. 1 Greenl. Ev., §§ 109, 110. Roberts v. Roberts, 82 N. C., 29. Besides, the record shows and the defendant testifies to the fact that the attorney did, in filing the petition, act for all the parties, and the excluded evidence goes no further, for it does not profess to show the authority for representing the infant owners, but only that he was the attorney for them, a matter not in dispute. No harm could, therefore, come from the exclusion. 2. The second exception is to the refusal of the court to permit proof of the good character of the attorney to be introduced when offered during the examination of witnesses. Whatever force there may be in the objection to this ruling, it is removed by the intimation of the court afterwards and before the retirement of the jury, that the evidence would be heard, and the plaintiff’s admission of what it was proposed to prove. It is not only the right but the duty of the judge who may have committed an error during the progress of a trial, to correct it as soon as discovered, and this was done in the present case. The proved fact was before the jury and not mere evidence of it, and in this respect the defendant’s case was more favorably presented than if the evidence had been permitted. As the court may withdraw evidence improperly admitted when the error is discovered and instruct the jury to disregard it, so that which has been wrongfully excluded may be allowed to be introduced before the jury retire, and in either case the grounds of complaint of the first rulings are removed. It is true the appropriate time for the introduction of testimony is during the examination of the witnesses, and before argument, but the conduct of the trial must be left largely to the sound discretion of the presiding judge, and unless an uncorrected error has been committed, no objection to its exercise will be entertained. This is the import of the cases upon this point referred to in the brief *249 of defendant’s counsel —Parish v. Fite, 2 Murph., 258; Kelly v. Goodbread, Term Rep., 28; State v. Rash, 12 Ired., 382; Brown v. Commissioners, 63 N. C., 514. 3. The defendant also objects to the limited effect given to the deed from Meadows and wife to himself, and in not extending its operation to the interest afterwards acquired by the feme in the share of her supposed deceased brother' Franklin. The construction put upon the deed by the court is, in our opinion, correct. It conveys in terms “ all their right, title, interest and claim they have now, or may hereafter have in and to the estate, personal and real, belonging to the estate of Solomon Martin, deceased, Nancy Meadows being a daughter of Solomou Martin, deceased, and they being hem to one-fourth of the real estate, there being three other children, and one-fifth of the personal estate, there being a widow also.” The deed was executed in June, 1868, when Franklin was living, and it is apparent, was not intended to embrace more than the grantor, Nancy, then owned and was able to convey. Her share in the estate of her brother isas-distinct and separate an estate as if he had derived his title from some other source, and did not exist in any form when the deed was made. 4. The next objection is that the personal representative of the attorney, Stephenson, is not a party to.the action. If this were necessary to a full adjudication and adjustment of the matter in controversy, he has no direct interest in the determination of the issues made in the pleadings. It is not material to his estate whether the proceeding for partition and sale are successfully impeached or not, nor is it important to the parties to the action that he should, be before the court, and if it were he can still be brought in without disturbing what has been already done. Whoever may be entitled to the fund which was in the hands of the commissioner may pursue it still. The results show that it belongs to the defendant, and he cap maintain *250 suit for its recovery. This is expressly decided in the case of Smith v. Moore, 79 N. C., 82. See also Curtis’ Heirs, 82 N. C., 435. 5. The last exception to be noticed is taken to the charge of the court, and in this we discover no error prejudicial to the defendant. The instruction was in substance, that the admission that the proceedings were begun and prosecuted by a regular attorney of the court, of good character and professional standing, made a “conclusive presumption of law that they were regular and the parties properly made, unless the parties show actual fraud in the transaction,” meaning, as we understand, fraud perpetrated by the defendant in securing the title to the land through the instrumentality of the suit. There is nothing in this obnoxious to objection, for fraud in obtaining the property of another can no more prevail when its object is sought to be attained through the form of a judicial proceeding, than when it is attempted by means of a deed. When entering into a judgment, as when entering .into a conveyance, it alike vitiates and annuls. Nor was it wrong in the court to tell the jury that “the character and bona fides of the attorney who filed the petition, were not necessarily involved in the issue,” as he may have acted upon the false information of the defendant. This aspect of the case was certainly presented by the evidence, and -while there may have been complicity between the defendant and the attorney, it was by no means a necessity arising out of their relations, and the latter may have acted upon representations in the integrity of which he fully confided, when he undertook to represent all the parties interested. We take the occasion to say that courts should be slow to disturb judicial proceedings conducted regularly to final judgment, under the constant supervision of the judge, upon the application of one who alleges that the attorney acted without his authority. It is of the highest importance that *251 the integrity of judicial action be maintained, and rights and interests determined by the adjudication be protected. Generally it must be assumed that those who undertake to act as attorneys for a party to the litigation, and are recognized by the court as such, possess the required authority to represent them ; and we simply refer to what is said on this subject to the cases of University v. Lassiter, 83 N. C., 38, and Sutton v. Schonwald, at this term, ante, 198. The present case stands upon a different footing, and the absence of authority to act for the infants, petitioners, is among the proofs of the fraudulent conduct of the defendant in the initiation and prosecution of the proceeding to its intended result. There is no error, and the judgment must be affirmed. No error. Affirmed.