Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 13 Cal. 191 at 202.
Appeal from the Twelfth District.
On the 31st day of July, 1854, Edmund Laffan filed a bill in equity against Isaac E. Holmes and plaintiff, claiming that Holmes had been left by him as his agent in charge of certain real estate in the city of San Francisco; that he had, in violation of his trust, caused said property to be sold on execution against him, Laffan, and had become the purchaser thereof, and afterwards had conveyed the same to the present plaintiff, James G. Holmes, who had united with the said Isaac E. Holmes, his brother, to defraud the said Laffan--and the bill prayed an account of rents and profits, and a reconveyance of the property. To this bill the two defendants made separate answers. The defendant, Isaac E. Holmes, denied all the equities of the bill; averred that he had acted with the best faith to the said Laffan; that he had bought the property in question with the full knowledge and acquiescence of Laffan, who relinquished and abandoned it to him, and had declined to redeem the most valuable portion when full opportunity was offered him to do so. The defendant, James G. Holmes, the present plaintiff, answered that he had purchased from his codefendant for valuable consideration, and without any notice whatsoever of any fiduciary relations between Isaac E. Holmes and Laffan. The defendants were both residing in Charleston, South Carolina, and were absent from the State of California. The answer of the defendant, Isaac E. Holmes, was signed by him propria persona. Mr. Louis Blanding appeared as the Attorney of James G. Holmes, the present plaintiff. When the pleadings were in this position, and before the case was brought to trial, on the 8th of June, 1855, a certain instrument purporting to be a compromise of all matters in dispute between the parties to the said action was filed in the cause, executed by Laffan in person, on the one part, and on the other part by Hall McAllister, as professed Attorney in fact of the defendant, Isaac E. Holmes, and by Wm. Blanding as professed Attorney in fact of plaintiff; and on the 27th of the month an instrument supplementary to the former, and executed by Wm. Blanding for both defendants, was filed in the cause. These instruments surrendered to Laffan all the property claimed by him in the suit, and agreed to transfer to him other property belonging to plaintiff, which had never belonged to or been claimed by Laffan, and they provided for the entry of a decree, directing a conveyance by defendants to Laffan of all the property mentioned in them. On the 18th of July, 1855, a decree was accordingly entered, ordering the conveyance to Laffan of all the property described in the complaint, and other property not therein claimed, and which had never belonged to Laffan. The decree purports to have been made " by consent of parties," " with the consent of the defendants by their respective Attorneys in open Court." This decree the present bill prays may be set aside, and that the plaintiff may be allowed to make his defense to that action, according to the averments of his answer therein. The bill details at length the original transactions between Isaac E. Holmes and Laffan, and shows no fraud on the part of the agent.
The bill then alleges that the instruments of compromise upon which the decree was founded were made without authority, and were void; that they were made by the friends of the defendant, I. E. Holmes, and from good motives, but with an imperfect knowledge of the facts, and without authority. And as to the consent of the Attorney-at-Law, recited in the decree, it is alleged, " that the said Louis Blanding, the Attorney of record of this plaintiff, defendant in that action, had no authority to consent to the rendering of said decree, nor was he in fact, as recited in said decree, present in Court and consenting to the rendering of said decree, nor did he in fact exercise his judgment on behalf of this plaintiff in said matter, but having a great regard for the character and reputation of the said I. E. Holmes, and being misled in reference thereto by an imperfect acquaintance with the true facts of the controversy with the said Laffan, which facts he made diligent efforts to ascertain, but could not learn, he neglected and omitted the strong ground of defense which this plaintiff had in law and equity to said action, and allowed the said Wm. Blanding and Hall McAllister to compromise and arrange the whole matter as they supposed best for the said I. E. Holmes, altogether overlooking the legal position and defense of this plaintiff."
For further facts see opinion.
Defendants and intervenors demurred, generally, to the complaint. The demurrers were sustained, and final decree was entered dismissing the complaint. Plaintiff appeals.
COUNSEL:
1st. The consent of counsel was not in fact given. Hall McAllister and Mr. Blanding assumed the settlement of the controversy with Laffan, and made a written agreement, by which all the property that Laffan claimed was given up to him; and Louis Blanding, the Attorney-at-Law, believing these gentlemen to be acting in the best interest of I. E. Holmes, whose real position he did not understand, gave up to them the management of the whole matter, and allowed them to close the compromise without interposing the true defense of his own client. Thus there was not actual consent to the decree by Louis Blanding, but rather an abandonment of the case, and the pleadings were in such position that nothing short of an actual consent of counsel could justify the decree. There were no proofs; there was no default; on the contrary, there was a denial of all the equities charged in the bill.
2d. But we claim that such consent as was necessary here is not within the scope of the ordinary powers of counsel.
And again, that it was not within the authority which the counsel produced to justify his action, or rather non-action, here. (Howe v. Lawrence, 2 Zab. 99; Derwort v. Loomer , 21 Conn. 245, 256; Lamson v. Bettison, 7 Eng. 401; 25 Penn. 264; Vail v. Adm'r of Jackson , 15 Vt. 314, and Cases cited; Garvin v. Lowry , 7 S. & M. 24; 3 How. 314; 2 J. J. Marsh. 69, 70, 71; Smith v. Bossard, 2 McCord Ch. 409; Shaw v. Riddle, 2 How. Pr. 246; Gaillard v. Smart, 6 Cow. 386; Connoss v. Challes, 17 L. J. Exch. 319; Swinfen v. Swinfen, 87 Eng. C. L. 369; Holker v. Parker, 7 Cranch, 436; Savary v. Chapman, 11 Adol. & El. 829.)
But the Respondents contend, that even admitting the above, there is no relief against a consent decree unless it were obtained by fraud. And that the remedy the Appellant has invoked here, is unknown to equity proceedings; that a bill to set aside or impeach a decree can only be brought for fraud in obtainingthe decree.
I. Undoubtedly, a consent decree cannot be set aside by bill of review, appeal, or rehearing, because there is, strictly speaking, no error in a consent decree.
II. But the Respondents contend that even an original bill can impeach a decree, whether on consent or otherwise, only in the case of fraud.
The books speak of a bill to impeach a decree for fraud, because such is the prevailing character of such original bills, fraud being the chief and most usual ground of equity jurisdiction in such cases, but that the same kind of relief is in fact available in the kindred cases of accident and mistake. We claim that there is relief in equity against a consent alleged, which was not in fact given, the allegation being made by accident or mistake, or against a consent which was actually given through accident or mistake.
This decree is only a part of an executory contract. The instruments of compromise provide for the surrendering up of a large part of the plaintiff's property, for the entering of a decree to enforce part of the agreement, and for conveyance by the parties of the lots in question; some of these lots are included in the decree, though not subjectsof the action, and some of them are not included in the decree. The compromise proceeds to the entry of the decree, when the parties repudiate it, and declare that they are not bound by the compromise. They are clearly entitled to set aside the uncompleted agreement because there was no authority to execute it; they are not bound to convey the property not mentioned in the decree; are they bound to convey the property improperly embraced in the decree because not the subject of the action, or are they only bound to convey the property more regularly embraced in the decree because the subject of the action? (See Anderson v. Woodford, 8 Leigh, 316; Reid v. Clark, Speer Eq. 343; Piche v. Emerson , 5 N.H. 394; 1 Ves. 92; Smith v. Bossard, 2 McCord Ch. 409.)
I. A decree may be impeached by original bill, without charging fraud.
1. The term " original bill to impeach a decree for fraud" is a mere nomen generalissimum; there are bills that are classed in this category in which no fraud is alleged. (Story's Eq. Pl. Secs. 427, 428, and Note 1.) 2. Courts of Equity will open a decree or other proceeding taken against aparty by mistake or surprise as well as fraud. (1 Vern. 131, Case 117; Parker v. Dee, 3 Swanst. 534, Note; Smith v. Bossard, 2 McCord Ch. 409; Kemp v. Squire, 1 Ves. Sen. 205, 206, 207; Denton v. Noyes, 6 Johns. 296, 301, 304, 306; Brooks' Adm'r v. Love, 3 Dana, 7; Town of Alton v. Town of Gilmanton , 2 N.H. 521, 522; Pike v. Emerson , 5 Id. 394; Decarters v. Lafarge, 1 Paige, 576; Millspaugh v. McBride, 7 Paige, 512; Erwin v. Vint , 6 Munf. 267-270; Callaway v. Alexander, 8 Leigh, 118, 119; Anderson v. Woodford, 8 Leigh, 316, 326, 328.) 3. By Section 68 of the Practice Act, a party is relievable " from a judgment, etc., taken against him through his mistake, inadvertence, surprise, or excusable neglect; " and no time is limited for the application. (People v. Lafarge , 3 Cal. 130, 134, 135, 136.)
II. Even if it were true that a decree can be impeached only for fraud, this would not affect the present bill, which is to set aside certain instruments of compromise, which the plaintiff never authorized, and under which the decree in question was entered.
III. A decree may be opened, though entered by consent of Counsel.
1. The consent to the entry of the decree was not actually given by the plaintiff's counsel, Louis Blanding, but by his brother, who had assumed to act for the plaintiff. 2. It is doubtful whether it be within the scope of the ordinary authority of a counsel to consent to a special and final decree in equity. (Beach v. Shaw, 4 Barb. 294.) 3. The agency of an attorney or counsel is limited to the prosecution or defense of the suit. He is clothed with all incidental powers which may be requisite for the successful fulfillment of the object of his agency; but not to make a compromise, nor, withdrawing the suit from the determination of the Court, and putting himself in loco judicis, to consent to a final decree, definitively settling the rights of his client. (Howe v. Lawrence, 2 Zab. 106; Holker v. Parker, 7 Cranch, 452-455; Vail v. Jackson , 15 Vt. 321; Smith v. Bossard, 2 McCord Ch. 409; Mayor v. Foulkrod, 4 Wash. C. C. 511; People v. Lamborn, 1 Scam. 124; Filby v. Miller, 25 Penn. St. 267; Commissioners of Accounts v. Rose, 1 Desau. 469-470; Kimball v. Gearheart , 12 Cal. 27.)
Moreover, certain other property, not claimed in the suit, wasstipulated to be also given up to Laffan, and although this property is not mentioned in the decree, the plaintiff's title to it is clouded by the agreement so long as it is permitted to stand. 4. Granting that a decree made by consent of counsel will not be set aside because the consent was not authorized by his client, it is no answer to the bill, which does not ask relief on this ground, but on the ground that the counsel's consent was given, not only under circumstances which prevented a fair use of his judgment, but under a supposed compromise which had never been made. If the plaintiff himself had consented to the decree, under a mistake as to an important fact, it would be a sufficient ground to set aside. 5. That Courts may open decrees made by mistake of counsel, appears from authority, as well as principle. (Beach v. Shaw, 4 Barb. 293, 294, 295; Denton v. Noyes, 6 Johns. 301, 304, 306; Anderson v. Woodford, 8 Leigh, 316, 326, 328; Swinfen v. Swinfen, 87 Eng. C. L. 364; London Times of July 29th, 1858.)
Whitcomb, Pringle & Felton, for Appellant, argued that the decree should be set aside, because: 1st. The consent or will of the party was not in fact given by his counsel, and hence that the decree was rendered through a mistake of fact. 2d. That even if the counsel consented, he was not authorized to bind plaintiff by such consent, and hence there was no consent of the party.
F. J. Lippitt, also for Appellant.
Hoge & Wilson, and D. Rogers, for Respondents, argued: I. That the complaint was not good as a bill of review. New matter is not pretended, and any error of law is barred by time. (Story's Eq. Pl. 450-455; 1 Hop. 104.) II. The complaint is not good as an original bill. A decree cannot be impeached by an original bill, except on the ground of fraud. (Davoe v. Fanning, 4 Johns. Ch. 202, 203, and Cases there cited; White v. Bank U. S., 7 Ohio, 528; 6 and 7 Cond. Ohio, 233; Brooks v. Love, 3 Dana, 7, and Cases cited; Story Eq. Pl. 483, Sec. 426; Id. 647, Secs. 638, 639; 3 Dan'l Ch. Pr. 1724; Id. 1785; Gifford v. Thorn, 1 Stock. N. J. 722, etc.)
This case is like Barnett v. Kilbourne, (3 Cal. 327,) and the language of the Court there is appropriate to the case at bar. It is, in reality, " only an application for a new trial," and the " ignorance of counsel," or " insufficient conduct in the prosecution of the first suit, do not constitute grounds for relief in chancery." III. That the Attorneys had the power to consent to the decree on the original suit, and that no relief can be granted on account of their negligence, appears from the following authorities:
" There is no difference between decrees entered by consent, and decrees after argument. If fairly entered, they are equally valid and operative, so long as they remain in force." (French v. Shotwell, 5 Johns. Ch. 568; S.C. in Ct. of Errors, 20 Johns. 668; Bradish v. Magee, Amb. 229; Costa v. Clark, 3 Edw. Ch. 410; Harrison v. Rumsey, 2 Ves. Sen. 488; 1 Hoff, Ch. Pr. and cases there cited; Descarters v. La Forge, 1 Paige, 574; Monell v. Lawrence, 12 Johns. 534; Pierce v. Perkins, 2 Dev. Eq. 252; Story v. Hawkins, 8 Dana, 13; see, also, Talbot v. McGee, 4 Mon. 377; Glass v. Thompson, 9 B. Mon. 237; Farmer's Trust and Canal Bank v. Ketchum, 4 McLean, 120; Town of Alton v. Town of Gilmanton , 2 N.H. 520; Pike v. Emerson , 5 Id. 393; Hanson v. Hoitt , 14 Id. 56; Kent v. Richards , 3 Md. Ch. Dec. 392; Hench v. Todhunter, 7 Har. & J. 275; Thornburg v. McAulay , 2 Md. Ch. Dec. 427; Greenleaf v. McDowell, 4 Ired. Eq. 484; Grice v. Rix, 3 Dev. 64; Suydam v. Pitcher , 4 Cal. 281; Markley v. Rand , 12 Id. 275; Gifford v. Thorn, 1 Stock. N. J. 722, 723.)
IV. Counsel say: " That this consent or will of the party was not in fact given by his counsel, and hence that the decree was rendered through a mistake of fact, and should be set aside."
The caseof Atkinson v. Monks (1 Cow. 709,) furnishes an answer to this proposition. " The decree, in everything that respects the reference, purports to have been made on consent. If the Chancellor was mistaken in supposing Atchinson's counsel to have consented to it, application should have been made to him to have the mistake as to the consent corrected. That course not having been pursued, this Court cannot try the question whether there was a mistake or not. We must take the facts to be as stated in the decree, and entirely disregard the suggestion of a mistake. No appeal or rehearing lies from a decree made by consent." (2 Madd. Ch. Pr. 577; Bradish v. Magee, Amb. 229.)
But the counsel cites the 68th Section of the Practice Act, (People v. Lafarge , 3 Cal. 130,) and asserts that " an application after the term can properly be made only by original bill." " That case was a bill in equity, to set aside a judgment at law for fraud. Judge Heydenfeldt treated it as the ordinary bill in equity on that ground, but Judge Wells treated it as a motion, and maintained that it could be made after a term elapsed. In Baldwin v. Cramer et al., (2 Cal. 583,) it was expressly held, " thatafter the expiration of a term of the District Court, no power remains in it to set aside a judgment or grant a new trial." The latter cases are all the same way. (See Suydam v. Pitcher , 4 Cal. 280, 281; Shaw v. McGregor , 8 Id. 521.)
But the decree in this case recites that, " This cause coming on for hearing and trial, by consent of the parties, by the Court, and the same being considered by the Court," etc. From this it may be implied that a trial was had, and the decree of the Court rendered after deliberation on the evidence. The fact of a consent to a decree would not vitiate it, if otherwise good. The decree imports a verity, and all the intendments are those that support it.
" Where there are two presumptions, both equally reasonable, arising upon the face of the record, this Court is bound to adopt that which will maintain the judgment of the Court below." (Whipley v. Flower , 6 Cal. 632; see, also, Nelson v. Lemmon , 10 Id. 49; Girwall v. Henderson , 7 Id. 290; Ford v. Halton , 5 Id. 521; White v. Abernethy, Id. 3, 99; Blaney v. Findley, 2 Black. 338; Evans v. McMahon , 1 Ala. 45; Ellis v. Dunn , 3 Ala. 632; Ice v. Manning , 3 Id. 121; Dearing v. Smith , 4 Id. 432; Gary v. Wood, Id. 296.)
We submit that: 1. The decree sought to be impeached is good as rendered on " a hearing and trial." 2. It is good as a consent decree. 3. That the counsel for the respective parties did, in fact, and without mistake, consent. 4. That counsel may consent to a decree that will bind their client. 5. If there was a mistake in supposing counsel did consent, that it should have been corrected on motion at the same term of Court, and it is now too late. 6. That the complaint is not a bill of review. 7. That no decree can be impeached by an original bill, except for fraud.
V. As to the compromise outside of the decree, this Court has nothing to do with it, and no jurisdiction concerning it. If the " professed Attorneys in fact" had no authority to make the agreement, it does not bind the brothers Holmes: they have not yet conveyed, and have the title in their names. If out of possession, they can recover an ejectment. If in possession, they can file a bill to quiet title.
JUDGES: Baldwin, J. delivered the opinion of the Court. Terry, C. J. concurring.
OPINION
BALDWIN, Judge
On Petition for rehearing, the following opinion was delivered by Baldwin, J.--Terry, C. J. concurring.
This case was argued by Appellant's counsel at the bar. We declined to hear Respondent's counsel, under an impression that this bill could not be sustained. A speedy decision was desired by the Administrator, on the ground that this was necessary to the settlement of the affairs of the estate, and such cases we consider privileged. We found on file elaborate briefs on both sides. Since the decision, a long and able printed argument, prepared before our opinion was delivered, has been filed. We have read it attentively, but it has not changed our conclusion. We omitted to notice specifically one or two points taken by the Appellant's counsel, but they fall within the doctrines laid down in the opinion. Nor did we propose to follow the line of the argument of counsel. It is not our habit to do so. An opinion is not a controversial tract, much less a brief in reply to the counsel against whose views we decide. It is merely a statement of conclusions, and of the principal reasons which have led us to them. If we were to undertake to follow the elaborate arguments on both sides, and then, in addition, to give our own views, the extent of our labors may be estimated by the fact, that in this case not fewer, probably, than one hundred pages of printed matter have been employed in the argument.
We think that there is nothing in the point that some portion of property of Holmes, never owned by Laffan, or put in controversy in the suit of Laffan and Holmes, was covered by the decree. If the Attorney assented to the decree--this was no error--if the decree was erroneous for this, there was a right of appeal. There are several other answers. But we do not propose to go again into the subject.
We are satisfied that the judgment of this Court is right, and deny the petition.