Oates Ex Rel. Oates v. Texas Co.

Adams, J. In the county court, at April Term, 1919, the plaintiff, who appeared in the cause by his father as next friend, recovered a judgment for the injury complained of in the present action, and on 20 *477 May bis attorney signed and filed a receipt for $156.70 in full payment of the principal and costs. By bis mother as next friend be brought the pending suit on 6 July, 1931, and now prays judgment for additional damages alleged to have resulted from bis injury. Tbe defendant answered, pleading in bar the judgment of the county court, and the plaintiff filed a reply in which be challenged the validity of the former judgment. In bis reply be alleged that this judgment is void and not binding in any way, but in bis brief be seems to treat it as voidable. Of course a party may attack a judgment for fraud by an independent action, but be must set forth facts and circumstances by which the court may finally determine whether fraud is sufficiently alleged; and in this respect tbe plaintiff’s pleading, we think, is defective. He frankly disavows any fraudulent conduct on tbe part of counsel who participated in tbe former proceeding and none is charged against tbe defendant. Tbe only color of fraud is the allegation that if the judgment binds the plaintiff be will be deprived of bis rights and damages to the extent of $25,000. It is insisted, however, that tbe action should be treated as a motion in the cause and that tbe judgment should be set aside for irregularity. We prefer to rest our decision upon tbe merits of tbe controversy and not upon a technicality in procedure. The plaintiff makes bis contention upon the settled principle that where issues are joined in an action between an infant and an adverse party and no evidence is introduced at the bearing, it merely appearing that an agreement is made by the parties that judgment be entered by consent, the judgment will not be binding upon the infant. To support this position the plaintiff cites several cases to which brief reference may be made. The proposition just stated is clearly set out in Ferrell v. Broadway, 126 N. C., 258; but the Court was careful to guard against misunderstanding by saying, “We are not intimating by making this order to remand the case, that a next friend of the infants cannot agree to a consent decree or judgment in a case where all the facts are developed and found by the court, and an order made that the arrangement would be best for the interest of the infants.” In Rector v. Logging Co., 179 N. C., 59, the Court adhering to the doctrine that a next friend is without authority to compromise and adjust a claim in tort without the sanction and approval of the trial judge after an investigation of the facts, concluded that final decision on the matters in controversy ought to await a full disclosure of the facts, the defendant meantime having raised an issue of fraud. Substantially the same course was pursued in Patrick v. Bryan, 202 N. C., 62. According to the record in Keller v. Furniture Company, 199 N. C., 413, judgment was given for the plaintiff in the first suit without any investigation of *478 tbe facts and was afterwards set aside on tbis ground by tbe judge wlio tried tbe cause. In tbe case before us tbe facts are easily distinguishable. Here tbe judgment recites an investigation by tbe trial court and a finding that tbe settlement was just and reasonable. If “just and reasonable” tbe compromise was not prejudicial to tbe infant. To assail the judge’s finding without allegation and proof of fraud would be equivalent to an impeachment, not of irregularity in tbe procedure, but of tbe essence of tbe judgment — a denial of tbe specific act which tbe court declares it performed. We should be reluctant to concede that tbe verdict of a jury, after tbe lapse of twelve years, can supersede tbe solemn adjudication of tbe trial judge concerning a judicial matter peculiarly within bis own experience. In tbe absence of fraud bis finding is conclusive, even if it should be granted that without an investigation of tbe facts tbe consent judgment might have been deemed “colorable and collusive.” The appellee suggests that there is no record or recital of an appointment of a next friend for the plaintiff in the first action. There was an allegation in the complaint that 'William Oates bad been duly appointed as bis next friend. But if not duly appointed, as was said in Tate v. Mott, 96 N. C., 19, 27: “He did irregularly what was necessary and proper to be done by a next friend. It must be so taken, because as we have said, the court recognized him as serving a proper purpose— that of a next friend — and acted upon the appearance of the infants by him. Otherwise, it would not have granted the prayer of the petition. It was essential that there should be an appearance by a next friend, who ought to have been regularly appointed, but as one appeared in fact, and the court so treated him, that was sufficient for the purpose of acquiring complete jurisdiction.” Tbe judgment of the Superior Court is Reversed.