Town of Bath v. Norman

Seawell, J. Tbe movent has attacked tbe judgment of May Term, 1945, purporting to be by consent, on tbe ground tbat tbe signatory party bad no authority to give such consent in its behalf. If it can make good on tbat challenge, all other matters brought forward in tbe record are irrelevant. In fact, it is, and was, tbe only point for consideration on tbe motion initially and throughout tbe bearing, since absence of authority to consent would deprive tbe judgment of any sort of validity. A careful consideration and analysis of tbe record leads us to tbe conclusion tbat denial of plaintiff’s motion to vacate tbe judgment was erroneous. Upon tbe bearing of tbe motion, tbe trial judge frankly proceeded on tbe theory tbat tbe Frizzelle judgment could, at tbe worst, be only irregular, devolving on tbe moving party tbe burden of showing its claim was meritorious. Counsel for appellees admit this in their brief and so contend here, citing (a) Perry v. Surety Co., 190 N. C., 284, 129 S. E., 721; Daniel v. Power Co., 201 N. C., 680, 161 S. E., 210; (b) Harris *505 v. Bennett, 160 N. C., 339, 76 S. E., 217; Duffer v. Brunson, 188 N. C., 789, 125 S. E., 619; Crye v. Stoltz, 193 N. C., 802, 138 S. E., 167. A consent judgment, however, depends for its validity upon the consent, without which it is wholly void. King v. King, 225 N. C., 639, 35 S. E. (2d), 893; Rodriguez v. Rodriguez, 224 N. C., 275, 29 S. E. (2d), 901; Deitz v. Bolch, 209 N. C., 202, 183 S. E., 384; Bizzell v. Equipment Co., 182 N. C., 98, 108 S. E., 439. A purported consent by one having no authority is in law no consent. Johnston County v. Ellis, ante, 269, 278, 279, 38 S. E. (2d), 31. In this jurisdiction, a showing of merit either as to the cause of action or defense is not required in order to vacate a void judgment. Flowers v. King, 145 N. C., 234, 58 S. E., 1074; Monroe v. Niven, 221 N. C., 362, 365, 20 S. E. (2d), 311. Whether their adversary has been fenced in, or fenced out, as contended by counsel for defendants, is a matter which must await the proverbial “day in court” for its determination. Conceding that the burden is on the moving party to show want of authority in Daniel to consent to the judgment in question, the plaintiff has been materially aided in carrying that burden by defendants’ affidavits, which purport to tell just what occurred. From a perusal of this evidence, it becomes clear that the governing body of the town took no official action in the matter toward authorizing the consent or terminating the litigation through the judgment entered. The only thing in the findings of fact approaching an affirmation of any action by the commissioners is the statement: “Mr. Daniel informed Mr. Grimes that Mr. Tankard, who had been authorized by the governing officials of the town to handle the matter,” etc., as appears in finding No. 11. If this is to be construed as indicating that there was an official delegation of authority, it is unsupported by the evidence. We are not required here to draw a sharp line between incidental matters which a municipality, as other clients, in the handling of a lawsuit must needs leave to the discretion of its attorney, guided by such informal counsel as personal contact may supply, and matters more importantly affecting the rights of the client and the objectives of the suit. We do say that authority to consent to a judgment which gives away the whole corpus of the controversy — not only abandons title to lands claimed in good faith by the municipality, but puts that title in an adversary — should rest on official action of the board rather than casual personal assent of its members, even if that assent could be found to exist. Burgin v. Board of Election, 214 N. C., 146, 198 S. E., 573; O’Neal v. Wake County, 196 N. C., 184, 145 S. E., 28; Realty Co. v. Charlotte, 198 N. C., 564, 152 S. E., 686; Ins. Co. v. Guilford County, 225 N. C., 293, 34 S. E. (2d), 430; London v. Commissioners, 193 N. C., 100, 136 S. E., 356; 37 Am. Jur., “Municipal Corporations,” sec. 54. *506 It is suggested that 'tbe judgment may be sustained on some principle other than consent of the parties; that it was within the power of the court to render a judgment of this sort without such consent. Beyond a simple nonsuit for failure to prosecute the action, we know no appropriate judgment which the court may have rendered. The suggestion that the course taken by Mr. Daniel was within some general or inherent or imputed power of an attorney by reason of his retainer and official connection with the case, by the exercise of which, however disastrous, the client is bound, is without merit. In this State, as generally throughout the Union, the client, municipal or otherwise, is bound by many acts of his attorney incidental to the ordinary conduct of the case, often of great importance. But that power does not extend to an act of the sort under review, or to any other substantial compromise of the client’s right, and is not of a character to avail the defendants in the present ease. Hall v. Presnell, 157 N. C., 290, 294, 295, 72 S. E., 985; Hairston v. Garwood, 123 N. C., 345, 349, 31 S. E., 653; Bank v. McEwen, 160 N. C., 414, 420, 421, 76 S. E., 222; 5 Am. Jur., 317, sec. 96, et seq. We have arrived at the conclusion that although Mr. Daniel acted in the utmost good faith and with the best of motives, he was, upon the record, without legal authority to consent to the challenged judgment. The judgment of Thompson, J., rendered as of February Term, 1946, Beaufort County Superior Court, is, therefore, reversed; and the judgment rendered by Judge Frizzelle at May Term, 1945, is vacated. The cause is remanded for further proceeding. Reversed and remanded.