Peoples Bank v. Penland, 206 N.C. 323 (1934)

March 21, 1934 · Supreme Court of North Carolina

206 N.C. 323

THE PEOPLES BANK OF BURNSVILLE v. R. L. PENLAND et al.

(Filed 21 March, 1934.)

Judgments K a — Held: movant rehutted presumption of attorney’s authority and order setting aside consent judgment is upheld.

While the authority of an attorney is presumed when he professes to represent a client, where the alleged client has assumed the burden of proof and satisfied the court that an attorney signing a consent judgment in her behalf was without authority and that she was not present at the hearing and had not agreed to the judgment or authorized anyone to agree thereto, the court’s judgment setting aside the consent judgment will be upheld on appeal.

Appeal by plaintiff from Schenck, J., at August Term, 1933, of YaNcet.

Affirmed.

Tbis is a motion made by Sallie Hensley to set aside a judgment purporting to bave been rendered against ber by ber consent at January Term, 1930, of tbe Superior Court of Yancey County. According to the entry on tbe judgment she was represented by attorneys; but tbe court found tbe facts to be tbat ber alleged consent resulted from misinformation imparted to tbe attorneys by another person and tbat she did not in fact consent to tbe judgment or employ attorneys; tbat sbe bad filed an answer in tbe cause denying ber liability; tbat sbe was not represented by authorized counsel at tbe bearing in wbicb tbe consent judgment was rendered; and tbat sbe is entitled to tbe relief prayed.

It was adjudged tbat tbe judgment be set aside and tbat tbe plaintiff return to court tbe money collected, to be beld until tbe final determination of tbe appeal. Tbe plaintiff excepted and appealed.

6r. D. Bailey, B. W. Wilson and Charles Hutchins for appellant.

C. B. Hamrich and W. K. McLean for appellee.

Pee Cubiam.

There is a presumption in favor of an attorney’s authority to act for any client whom be professes to represent. 6 C. J., 631, sec. 128. Tbe judgment was signed by attorneys professing to represent Sallie Hensley, and upon ber devolved tbe burden of showing tbat sbe did not consent to tbe judgment. Chemical Co. v. Bass, 175 N. C., 426; Gardiner v. May, 172 N. C., 192. Sbe assumed tbe burden and satisfied tbe trial court tbat sbe bad not employed counsel to represent ber in tbe matter then adjudicated; tbat tbe attorneys who signed tbe judgment bad not been authorized to do so; tbat she was not present at tbe bearing; and tbat sbe neither agreed nor authorized any one to agree to tbe judgment.

Tbe judgment is therefore affirmed. Lynch v. Loftin, 153 N. C., 270, 274.

Affirmed.