Opinion
No. 39613.
April 11, 1955.
1. Decree — Chancellor — properly refused to sign and enter decree.
Chancellor properly refused to sign and enter upon minutes a decree compromising and settling boundary line dispute, approved in good faith by all attorneys in case, where one of landowners involved in suit had not been consulted with reference to settlement, and settlement and decree were unsatisfactory to her and attorneys participating in case had not been employed by her, but by her son who owned a contingent interest, and son's instructions from mother were that any settlement agreed must be submitted to her for approval before becoming binding.
2. Decree — approved by counsel — not an agreed decree — until signed by Chancellor.
The decree referred to in Headnote No. 1 approved by all attorneys in case did not have binding effect of an agreed decree until signed by Chancellor and entered upon minutes.
3. Decree — in breast of Chancellor.
Every decree is in the breast of the Court until entered, and a decree has no validity until written out and signed by Chancellor.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Clay County; R.P. SUGG, Chancellor.
B.F. Worsham, L.F. Sams, West Point, for appellant.
I. Mrs. Myers, Sr., had the choice of appearing in Court personally or by her solicitor; and, if by solicitor, she is bound by his bona fide acts. Grand Court of Calanthe v. Downs, 98 Miss. 740, 53 So. 417; Griffith's Miss. Chancery Practice (2d ed.), Sec. 95.
A. The authority of attorney for Mrs. Myers, Sr., to act for her is presumed. Griffith's Miss. Chancery Practice (2d ed.), Sec. 251.
B. The law and practice in Mississippi do not require that her attorneys exhibit a written authority from her to act in her behalf. Grand Court of Calanthe v. Downs, supra; Gulf Coast Motor Express Co. v. Lott, 171 Miss. 221, 157 So. 469; Hardin v. Ho-Yo-Po-Nubby's Lessee, 27 Miss. 579; Lester v. Watkins, 41 Miss. 647; McComb City v. Barron, 147 Miss. 465, 112 So. 875; Provenza v. Provenza, 201 Miss. 836, 29 So.2d 669; Griffith's Miss. Chancery Practice (2d ed.), Sec. 95.
C. When her attorneys were employed by Mrs. Myers, Sr., they became her alter ego in this cause. Hirsch Bros. Co. v. Kennington Co., 155 Miss. 242, 124 So. 344.
II. When Mrs. Myers' attorneys were once employed by her in this cause, they were thereafter conclusively deemed as authorized to continue as her solicitors until notice of her termination of their authority, if it was terminated, was filed in this cause. Sec. 1301, Code 1942.
A. Mrs. Myers cannot, as against her adversary, take advantage of any secret instructions which she might have given her solicitors. Grand Court of Calanthe v. Downs, supra; Griffith's Miss. Chancery Practice (2d ed.), Sec. 95.
III. It is competent for the parties or their attorneys to agree upon the facts in the case, to stipulate, or to agree for a consent decree to be entered. Doolittle v. Adams (Miss.), 43 So. 951; Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Newman v. Bank of Greenville, 67 Miss. 770, 7 So. 403; Porter v. Douglas, 27 Miss. 393; Starling v. Sorrell, 134 Miss. 782, 100 So. 10; Griffith's Miss. Chancery Practice (2d ed.), Secs. 541, 618.
A. Ordinarily, agreements of attorneys should be made in open Court; or, if out of Court, they should be reduced to writing in order to be binding. Such agreements are favored by our courts. In the instant case, the agreements were made in open courtroom and were subsequently reduced to writing, and the consent decree was signed as agreed to and approved by all four of the attorneys of record. Bramlett v. Adams, 96 Miss. 61, 50 So. 489; Gulf S.I.R.R. Co. v. Meyers, 114 Miss. 458, 75 So. 244; White v. Jones, 83 Miss. 231, 35 So. 450; Griffith's Miss. Chancery Practice (2d ed.), Sec. 540.
B. Such agreements, even if oral, are enforced in some circumstances, where to do so would promote justice. Rockett v. Finley, 183 Miss. 308, 184 So. 78; Griffith's Miss. Chancery Practice (2d ed.), Sec. 540.
C. The Chancery Court rules were complied with by the decree being approved in writing by all attorneys and being promptly submitted to the Chancellor. Griffith's Miss. Chancery Practice (2d ed.), p. 79, Rules 37-8.
D. Such consent decrees may be made and entered in vacation as well as in term time. Sec. 1228, Code 1942; Griffith's Miss. Chancery Practice (2d ed.), Sec. 618.
E. When facts are agreed to by the parties or their attorneys, such facts form as good a basis on which to found a decree as do facts established by a trial of the case upon its merits; and it is not necessary for a party to prove facts which have been agreed to. Parties are concluded from introducing evidence to vary or contradict their agreed statements of facts. Doolittle v. Adams, supra; Newman v. Bank of Greenville, supra; Porter v. Douglas, supra; Griffith's Miss. Chancery Practice (2d ed.), Sec. 541.
F. The binding force of a written agreement entered into by the counsel in the cause is not disturbed by the fact that defendants change counsel. Saffold v. Horne, 72 Miss. 470, 18 So. 433.
IV. Although in some jurisdictions an express authorization to consent to a judgment is necessary, in Mississippi as well as in other jurisdictions an attorney, by reason of his employment, has the implied or apparent authority to take such action if he acts in good faith and without fraud or collusion. Hurst v. Gulf States Creosoting Co., 163 Miss. 512, 141 So. 346; 7 C.J.S., Attorney and Client, Sec. 86 p. 907, Note 69.
A. This is true though the judgment is based on, or is in effect, a compromise or settlement of the client's rights or cause of action. Brannan v. Mobley, 169 Ga. 243, 150 S.E. 76; 7 C.J.S., Attorney and Client, Sec. 86 p. 907, Note 71.
B. This is also true in cases where the attorney is not authorized; where such lack of authority is unknown to court or the opposing party. Cocke v. Wilson, 161 Miss. 1, 134 So. 686; Hurst v. Gulf States Creosoting Co., supra; 7 C.J.S., Attorney and Client, Sec. 86 p. 908, Note 81.
C. If the consent by the attorney was in open Court, it has been held to make judgment conclusive on the client even though the attorney acted beyond the scope of his authority. Starling v. Sorrell, supra; 6 C.J., Attorney and Client, Sec. 150 p. 646, Notes 35-6.
D. It has been held that a consent decree authorized by an attorney was binding even though the consent was in violation of express instructions of the client. Grand Court of Calanthe v. Downs, supra.
V. In order to set aside the consent decree, signed and agreed to by her attorneys of record in open courtroom, the burden was upon Mrs. Myers, Sr., to clearly prove the following:
A. That her attorneys were guilty of fraud or some other equitable grounds which would justify the recision of a contract. The record in the case at bar clearly shows that this settlement and the consent decree were made in good faith, and the record is entirely devoid of any evidence of an equitable ground to rescind a contract. Great A. P. Tea Co. v. Majure, 176 Miss. 356, 168 So. 468; Middlesex Banking Co. v. Field, supra; Saffold v. Horne, supra; Starling v. Sorrell, supra; Griffith's Miss. Chancery Practice (2d ed.), Secs. 540, 618.
B. That in addition, it was encumbent upon Mrs. Myers to prove that she had a meritorious defense to this lawsuit, in order to have the decree which was in the hands of the Chancellor only for his signature, set aside. She failed to offer any evidence as to her defense. Cocke v. Wilson, supra; Hurst v. Gulf States Creosoting Co., supra.
B.H. Loving, Thomas J. Tubb, West Point, for appellees.
I. The Chancellor declined to give his sanction to the proposed decree for obvious and sufficient reasons, and his action relative thereto is not subject to review. Herold v. Craig, 59 W. Va. 353, 53 S.E. 466; Howard v. Jayne, 124 Miss. 65, 86 So. 752; Myers v. Clark, 207 Miss. 627, 42 So.2d 817; Nothem v. Vonderharr, 189 Iowa 43, 175 N.W. 967; Roemer v. Neumann, 26 Fed. 332; 30 C.J.S., Secs. 587, 678, 682 pp. 977, 1126, et seq., 1130; 83 C.J.S., Sec. 10 p. 15; Griffith's Miss. Chancery Practice (2d ed.), Secs. 619, 621, 625-6 pp. 665, 668, 676-9.
II. The proposed decree was a compromise settlement of the original cause of action of appellee, Mrs. Myers, Sr., the principal party in interest on the side of appellees, and her solicitors were without authority to agree to the same for her and they made a mistake of fact as to such authority in agreeing to the same; and such mistake of fact was the equivalent of legal or constructive fraud and was not binding on her and they were justified and acted properly in withdrawing such agreement when they learned of their mistake; and the consent of Myers, Jr., was based on misunderstanding, which has the same effect. Clark Co. v. Kingsland, 10 Miss. 248, 1 Sm. M. 248; Fitch v. Scott, 3 How. 314, 34 Am. Dec. 86; Levy v. Brown, 56 Miss. 83; Parker v. McBee, 61 Miss. 134; Rice v. Troup, 62 Miss. 186; 7 C.J.S., Secs. 86, 105 pp. 907, 928; Griffith's Miss. Chancery Practice (2d ed.), Sec. 619 p. 665.
Appellant filed this suit to establish the boundary line between property owned by him and property owned by Mrs. B.L. Myers, Sr., in which her son, B.L. Myers, Jr., had a contingent interest. At a regular term of court the case was set, by consent of all the attorneys, for hearing in vacation on December 8, 1953. On that date Mrs. Myers was seriously ill and unable to attend court. Negotiations toward a compromise were held between the attorneys and a tentative compromise agreement was entered into without the knowledge or consent of Mrs. Myers. After having the information obtained that day by a survey of the line, the lawyers got together and wrote a decree, which, upon completion was approved by all attorneys in the case. In the meantime, the chancellor had adjourned the vacation hearing and had left the county. Late in the day a copy of the decree was delivered to B.L. Myers, Jr., who carried it to his mother. The terms of the decree were not acceptable to either of them, and Mr. Myers telephoned the chancellor and told him the decree was not satisfactory and requested him not to sign it when it was presented to him. The decree was mailed to the chancellor and he did not sign it and it has never yet been signed by him.
At the following regular term of court the appellant made a motion that the decree be entered as approved by the attorneys. The appellees made a motion that it not be signed and entered upon the minutes. A hearing was had on these motions and considerable evidence taken thereon from which it appears that while all the attorneys were acting in good faith in the belief that they had authority to consent to the agreed decree, as a matter of fact they did not consult Mrs. Myers with reference to the settlement. They were not employed by her but by her son who testified without dispute that the only authority which he had was an instruction from his mother that if anything was agreed on it should be put in writing and submitted to her for her approval before it became binding.
(Hn 1) Appellant cites many authorities to the general effect that an agreed decree is just as binding upon the parties as a decree entered after a trial. The trouble with those authorities is that they are not applicable here. (Hn 2) They apply only to an agreed decree which has been signed by the chancellor and entered upon the minutes. (Hn 3) The rule in this State is that every decree is in the breast of the court until entered, and a decree has no validity until written out and signed by the chancellor. Griffith's Mississippi Chancery Practice, Section 621.
Affirmed and remanded.
Roberds, P.J., and Kyle, Holmes and Gillespie, JJ., concur.