Mann v. . Hall

BROWN, J., dissenting; WALKER, J., concurring in the dissenting opinion. This is a motion to set aside a verdict and judgment for mistake. Revisal, 513, empowers the judge "upon such terms as may be just, at any time within one year after notice thereof, to relieve a party from a judgment, order, verdict, or other proceedings taken against him through his mistake, inadvertence, surprise, or excusable neglect." On such motion the facts found by the judge are conclusive. This court can review only the question whether the facts so found constitute such mistake, or inadvertence, or surprise, or excusable neglect which would authorize setting aside the judgment or verdict. Norton v. McLaurin, 125 N.C. 185. The mistake must be one of fact, not one of law. Phifer v. Insurance Co.,123 N.C. 405; Skinner v. Terry, 107 N.C. 103. The facts found by the judge are those set out in the affidavit of H.S. Ward, which are in substance that several years ago one B. B. Sanderson owned a large tract of land in Hyde County and conveyed (52) eleven-sixteenths thereof to his children, and conveyed the other five-sixteenths, which had been surveyed and set off by metes and bounds as a separate tract, to his sister Josephine Jones; that after her death her husband, who was tenant by the curtesy, conveyed said last named tract in fee simple to the defendants in this action. After his death the plaintiffs, who are the heirs at law of Josephine Jones, instituted this action. They knew nothing of the bounds of the said tract, and their lawyer, said H.S. Ward, drew the complaint from the description given him by B. B. Sanderson. Said Sanderson in giving him the boundaries for the complaint and in his testimony at the trial spoke of the "five-sixteenths interest," to which plaintiffs were entitled, and their counsel did not understand that he meant to give or was giving the boundaries of the new tract of five-sixteenths of the original tract which had been cut off and conveyed to Josephine Jones, but understood that Sanderson was giving the boundaries of the whole of the original tract, and that plaintiffs were entitled to an undivided five-sixteenths interest therein. Said counsel being without other information as to the boundaries, asked in the complaint for a partition of said tract and *Page 43 an allotment of five-sixteenths to his clients. The issues were submitted to the jury under this mistake, the defendants made only a formal defense, and with the assent of the plaintiffs the verdict was rendered and judgment entered that plaintiffs were entitled to five-sixteenths and that the defendants were entitled to eleven-sixteenths in said tract. An interlocutory decree was entered in accordance therewith, appointing H.S. Ward commissioner to sell the premises for partition and report the sale. The affidavit of H.S. Ward, which the judge finds to be true, further avers that in drawing the complaint he thought he had described the whole of the original Sanderson tract, and that his clients were entitled to an undivided five-sixteenths therein, whereas under this mistake of fact he only described in the complaint the boundaries of the "five-sixteenths tract" which has been cut off and conveyed as an entire tract to Josephine Jones, the whole of which tract his clients were entitled to recover and for which this action was brought. (53) The judge found as a fact that the complaint was thus drawn by mistake, and that the verdict and judgment had been taken under the same mistake of fact, and ordered that the verdict and judgment should be set aside. It would be difficult to find any case in which the facts would authorize setting aside any verdict and judgment for "mistake" if the facts found by his Honor in this instance are insufficient. Prior to chapter 81, Laws 1893, the word "verdict" was not in this section (now revisal, 513), and there were decisions that the subsequent judge could not relieve in such cases when there had been the verdict of a jury. But it has now been held that a verdict can be set aside in cases of mistake or excusable neglect if the verdict has been rendered since the passage of that act. Morrison v. McDonald, 113 N.C. 327; Brown v.Rhinehart, 112 N.C. 772. In this case the interlocutory judgment directing a sale for partition and a report thereof and retaining the cause for further directions was made at fall term of Hyde, which began 18 November, 1912. The plaintiff's attorney discovered the mistake before any rights of third parties had intervened, and promptly made this motion to set aside the judgment and verdict in January, 1913. Such verdict and judgment were against the plaintiffs, in that it was adjudged that the defendants were entitled to eleven-sixteenths of this tract, and on the facts found the judge properly held that there was mistake which entitled the plaintiffs to the relief sought. Revisal, 513, authorizing the judge to set aside the judgment and verdict or other proceedings within one year after notice, is not restricted to cases of "excusable neglect," but embraces cases where the judgment or other proceeding has been taken "through his mistake, inadvertence, or surprise." These words are not mere surplusage, but *Page 44 mean entirely different things, though of course, the most common instance in which this section has been invoked has been in cases of excusable neglect. In Skinner v. Terry, 107 N.C. 107, it is held that it embraces cases where the party "was reasonably misled or (54) surprised by matters of fact," but that it does not embrace ignorance or mistake as to the law. In this case the counsel was misled by a mistake of fact, in understanding the witness, on whose information he drew the complaint and tried the cause, to give the boundaries of the larger tract and that his clients were entitled to five-sixteenths therein (neither the counsel nor his other clients having any knowledge of said boundaries) whereas the witness in fact was giving him the boundaries of the smaller tract, which was five-sixteenths of the larger tract, but which had been cut off, and of which, if his contention is right, the plaintiffs were entitled to the whole. If this judgment is not set aside, the plaintiffs will be deprived by such mistake, purely of fact, of eleven-sixteenths of land which is theirs (if their contention is right as to the law), whereas if the judgment is set aside the defendants can lose nothing of their right and the controversy will be decided on its merits. This is not the invocation of the doctrine of mutual mistake in equity, but a statutory provision for correcting a "mistake or inadvertence" in legal proceedings whereby an injustice would accrue to a party. In Lutz v. Alkazin, (N. J.) 55 A. 1041, which was a suit to reform a contract for sale of land and for specific performance so as to include 10 feet not in the description of the contract, the counsel overlooked the prayer to include the 10 feet, and took judgment omitting it. The Court held that this was a case of surprise, and that the decree should be opened to allow that matter to be litigated. This case is much stronger, because here, as a matter of fact, the counsel misunderstood the description as embracing the whole tract and understood that his clients had an undivided five-sixteenths therein by reason of such mistake and inadvertence. The defendants, who put in a mere formal defense, have not been prejudiced, and cannot in good conscience claim to hold the land for which they have obtained judgment by such mistake. If they have a good claim to said property, there ought to be (55) opportunity to have it understandingly passed upon by the court and jury. The party who has obtained judgment for an amount less than his claim is nevertheless entitled to prosecute an appeal therefrom. This is equally true on a motion to set aside a judgment under this section where the judgment by reason of mistake, etc., is for less than it should have been otherwise. This has been held in Montgomery v. Ellis, 6 Howard (Pr.), 326, in New York, in which this section of the Code *Page 45 is the same as ours. It is there said: "A party who has judgment in hisfavor may, on application to the court under section 174 (our section 513) of the Code, have redress or be relieved the same as if the judgment wasagainst him." This case is much stronger, for here not only the judgment was for less than the plaintiff was entitled, being for five-sixteenths of the tract when he was seeking to recover the whole tract, but the verdict and judgment go further and adjudge that the defendants are entitled to eleven-sixteenths of the land. This certainly is against the plaintiffs. His Honor properly set aside the verdict and judgment by reason of the palpable mistake made, on the facts as found by the judge, and directed that the real controversy should be tried out on its merits. If the defendants are not entitled to the eleven-sixteenths, they ought not to obtain it by such mistake and inadvertence. Revisal, 513. If the plaintiffs are not entitled to recover said eleven-sixteenths, they are not entitled to recover anything. The ready assent of defendants to the judgment, therefore, is significant. The motion was properly granted. Affirmed.