Southern Chemical Co. v. Bass

BeowN, J. It follows as a matter of course that the judgment cannot be set aside as to defendant Bass, as he was present in court and personally consented to it. We are also of opinion that the court properly refused to set it aside as to Adams. 1. Adams and Bass were copartners and had employed most reputable counsel to conduct their defense. The copartner Bass was entrusted by the firm with the management of the action. The complaint alleged a cause of action in contract, a simple indebtedness, and another cause of action in tort, embezzlement and willful misappropriation of plaintiff’s property by the copartnership. When the case was called for trial the counsel for defendants permitted judgment to be entered for the debt, the allegation of embezzlement having been withdrawn. The managing partner being present in court, consented to this. [429] It was well witbin the scope of counsel’s authority to consent to such a disposition of the case in their client’s interest. Doubtless those experienced attorneys felt they could successfully meet the charge of embezzlement, but could not defeat the debt. Hairston v. Garwood, 123 N. C., 345. But consenting to the judgment was not really the act of counsel, but that of the managing partner, who was present directing their action and that is binding on Adams. 2. The burden of proof was on Adams to satisfy the judge that he did not consent to the judgment, and he has failed to offer sufficient evidence. The law presumes the attorneys had the necessary authority and the burden is on the-party seeking to set aside a consent judgment to prove that no such authority existed. Gardiner v. May, 172 N. C., 192. 3. The defendants have been guilty of great laches in making their motion. The judgment was rendered in May, 1910. The summons was served personally on both partners. It is claimed by Adams that he did not know of the rendition of the judgment until 1917. He knew of the pendency of the action and that his partner was supervising and attending to its defense. He is guilty of laches in not inquring as to its disposition. He is charged with such knowledge as an inquiry would have disclosed. He cannot he permitted to wait nearly eight years and then say that he did not know that his suit had ended in a judgment against him. Besides, as his partner was acting for the firm, he is charged with such knowledge as his partner had. Affirmed.