Coker v. Coker

PaeNHill, J.

It clearly appears on the face of the complaint and from admissions made at the trial that the plaintiffs are not entitled to recover in ejectment until and unless the judgment in the caveat proceeding is vacated and set aside. They admit the judgment sustaining the will. Hence, at the time of the trial below they had no cause of action in ejectment.

Plaintiffs, in their second cause of action, seek to attack the former judgment by independent action rather than by a motion in the original cause. On the facts alleged their remedy, if any, is by motion in the cause. McIntosh, N. C. P. & P., 744, sec. 656;

Horne v. Edwards, 215 N. C., 622 , 3 S. E. (2d), 1 ;

Woodruff v. Woodruff, 215 N. C., 685 , 3 S. E. (2d), 5 ;

Rosser v. Matthews, 217 N. C., 132 , 6 S. E. (2d), 849 ;

Wynne v. Conrad, 220 N. C., 355 , 17 S. E. (2d), 514 ;

Cox v. Cox, 221 N. C., 19 , 18 S. E. (2d), 713 ;

Monroe v. Niven, 221 N. C., 362 , 20 *452 S. E. (2d), 311. Tbe court below, ratber than dismiss, treated it as such. This was permissible.

Finance Co. v. Trust Co., 213 N. C., 369 , 196 S. E., 340 , and cases cited.

Being a motion to set aside the former judgment, the evidence raised questions of fact for the court to decide and not issues of fact for the jury.

Cleve v. Adams, 222 N. C., 211 , 22 S. E. (2d), 567 .

The facts found, being supported by competent evidence, are conclusive. They are amply sufficient to sustain the judgment entered thereon.

No fraud or bad faith on the part of counsel in the former action is asserted. There is no evidence that the issue of devisavit vel non was answered by consent. It was answered by the jury under the instructions of the court on the evidence offered. The evidence tends to show nothing more than that counsel, over the protest of his clients, decided to offer no evidence of mental incapacity of the testator. There was evidence of assent on the part of the' plaintiffs and evidence contra.

The court found as a fact that caveators were fully advised of the course counsel proposed to follow and that they assented.

Counsel employed to conduct litigation has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror, calling no witnesses, and other matters which properly belong to the suit, and the management and conduct of the trial.

Bank v. McEwen, 160 N. C., 414 , 76 S. E., 222 . He has the free and full control of the case in its ordinary incidents, and as to those incidents is under no obligation to consult his client.

Gardiner v. May, 172 N. C., 192 , 89 S. E., 955 .

The attorney may exercise his discretion in all the ordinary occurrences which take place in a cause and may make stipulations, waive technical advantages, and generally assume the control of the action. Weeks, Attorneys at Law, p. 385;

Gardiner v. May, supra; Harrington v. Buchanan, 222 N. C., 698 , 24 S. E. (2d), 534 . If the clients are aggrieved by his conduct in such matters, they must look to him for recompense.

The judgment below must be Affirmed.