Bennett v. . Templeton

Denny, J. We think the merit of this appeal depends on whether or not the defendant employed Mr. E. C. Willis of the Catawba Bar to appear for him in the trial of this cause. The defendant’s counsel, Mr. C. David Swift, was absent with the permission of the court when the case was called for trial. However, he had requested a continuance of all his cases for the reason heretofore set out. The defendant submitted an affidavit in support of his motion to set aside the judgment herein, in which he denies that he employed or *678 requested Mr. Willis to appear for Him in this litigation. Moreover, the record does not disclose a finding by the court to the effect that Mr. Willis was employed or requested to represent the defendant in the trial of this cause. The record does state that the court proceeded upon the assumption that Mr. Willis represented the defendant. Therefore, if he was not authorized to represent the defendant in the trial of this case, he was without authority to waive a jury trial therein, and to consent for the court to hear the evidence, find the facts and declare .the law arising thereon. Furthermore, without the consent of the parties, the court was without authority to dispense with a jury trial, and to hear the evidence, find the facts and declare the law arising thereon; and any judgment based thereon would be void. McIntosh on Practice and Procedure, p. 734, et seq.; Ellis v. Ellis, 190 N. C., 418, 130 S. E., 7; Estes v. Rash, 170 N. C., 341, 87 S. E., 109. The court was not requested to set aside the judgment in its discretion. It was requested to set aside the judgment for irregularities, in that Mr. Willis was not employed by the defendant to represent him in the trial of this case. Upon the facts disclosed on this record, we think Mr. Willis acted in good faith in participating in the trial. He was acting not only in the capacity of a friend to the court, but he was also endeavoring to accommodate a fellow member of the local bar; and unquestionably he interpreted what the defendant told him over the telephone to mean that he was employed to represent the defendant if the court ordered the case tried. Likewise, the court acted in good faith in assuming that Mr. Willis represented the defendant, but his authority to appear in the case having been denied, in the absence of a finding to the contrary, we think the motion to set aside the judgment should have been allowed as a matter of law. If the defendant had been present at the trial below, and had not protested the appearance of Mr. Willis in his behalf, he would be estopped from denying his authority to appear. In view of the conclusion reached herein, there must be a new trial and it is so ordered. It is unnecessary to consider or discuss the remaining exceptions. New trial.