Howell v. Howell

Grice, Justice.

The petition does not allege that Messrs. Crawford and Barnett were not attorneys at law employed to represent the complainants in the caveat to the return of the appraisers in the court of ordinary. The presumption is that the attorneys were duly authorized to represent in that matter the persons for whom they appeared. Code, § 9-604; Bigham v. Kistler, 114 Ga. 453 ( 40 S. E. 303 ), and cit.; Edwards v. Wall, 153 Ga. 776, 780 ( 113 S. E. 190 ), and cit. The allegation that “said attorneys acted under a misapprehension and without proper authority from these plaintiffs to appear ther.e and represent them in making said purported settlement” is not an averment that the attorneys did not represent them in the litigation which resulted in the consent judgment in the court of ordinary, but must be treated as an averment of plaintiffs’ contention that counsel so representing them did not have authority to consent to the compromise judgment. See Elliott v. Elliott, 184 Ga. 417 ( 191 S. E. 465 ). There is no suggestion in the record of any fraud on the part of the attorneys. A judgment rendered with the consent of counsel is binding on the client, in the absence of fraud and collusion on the part of counsel with whose consent the judgment was entered. Adkins v. Bryant, 133 Ga. 465 ( 66 S. E. 21 , 134 Am. St. R. 211 ); Brannan v. Mobley, 169 Ga. 243 ( 150 S. E. 76 ); Reece v. McCormack, 188 Ga. 664 , Code, § 9-605. It is not set out in the petition that the attorneys acted in violation of express instructions given to them by the clients, which fact was known to the adverse party or his attorney, as in Davis v. First National Bank, 139 Ga. 702 ( 78 S. E. 190 , 46 L. R. A. (N. S.) 750). That the clients were not actually present in court when the judgment was entered, and knew nothing about it until later, is immaterial. Webster v. Dundee Mortgage & Trust Co., 93 Ga. 278 ( 20 S. E. 310 ); Taylor v. American Freehold Co., 106 Ga. 238, 248 ( 32 S. E. 153 ); Stone Mountain Confederate Asso. v. Smith, 170 Ga. 515 ( 153 S. E. 209 ). Upon application of the foregoing principles, the petition was subject to general demurrer, and should have been dismissed.

Judgment reversed.

All the Justices concur.