#### HARRILL BROTHERS v. SOUTHERN RAILWAY COMPANY.

(Filed 14 May, 1907).

Attorney and Client — Authority of Attorney — Judgment—Motion to Set Aside.- — Upon the appearance of record of a' reputable attorney for bis client, ample authority of the attorney to act as such is assumed by the Court, which ordinarily cannot be questioned; therefore, a motion to set aside a judgment entered upon an agreed statement of facts, on the ground that the attorney who signed the agreement for the defendant misunderstood the extent of his authority, and that the statement should first have been submitted to the division counsel, was properly denied.

*543Civil actioN, beard before Guión, J., at Eebruary Term, 1907, of tbe Superior Court of Rutherfobd County. Judgment for plaintiff, and defendant appealed.

McBrayer, McBrayer & McBorie for plaintiffs.

W. B. Rodman and 8. 3. Busbee & Son for defendant.

Walker, J.

This is a motion to set aside the agreed statement of facts and the judgment thereon wbicb was rendered by Judge Justice at a prior term. the motion was made before Judge Guion at Eebruary Term, 1907, of Rutherford Superior Court. the ground of the motion is tbat the attorney wbo consented to the case and agreed to the submission of it to the Judge for bis decision and judgment, which are set out in the former opinion of tbis Court at tbis term, misunderstood bis associate counsel as to the extent of bis authority, and tbat the ease should have been passed upon by the division counsel of the defendant before being adopted and. submitted to the Judge. Counsel wished to insert in the ease the alleged fact tbat the defendant’s agent, at the time the plaintiffs demanded the delivery of the goods, required the production of the bill of lading, wbicb the plaintiffs refused to produce. the judgment was signed 10 November, 1906, and tbis motion was made at Eebruary Term, 1907. the counsel wbo signed the case-agreed in behalf of the defendant was actually its attorney at the time, and representing it in this case at the term of the Court when the case was settled. He bad, apparently, all the authority necessary to act in the premises, and because be failed to observe special private instructions as to the manner of defending the suit is no reason, in our opinion, under the circumstances of tbis case, why the judgment should be set aside, as be appeared' to be clothed with general authority to act for the defendant. Greenlee v. McDowell, 39 N. C., 485; Branch v. Walker, 92 N. C., 89; Beck v. Bellamy, *544 93 N. C., 129; Weeks on Attorneys, sec. 222; Rogers v. McKenzie, 81 N. C., 164. In the last-cited case it is said: “If the existence of ample authority to act is assumed from the appearance of the attorney, with the sanction of the Court.(and ordinarily it could not be questioned), all the results must follow as if actual authority had been conferred, and among them the rightfulness of the defendant’s payment.” “It is the course of the King’s Bench,” said Holt, C. J. (1 Salk., 86), “when an attorney takes upon himself to appear, to look no further, but to proceed as if the attorney had sufficient authority, and to leave the party to his action against him, if he has suffered by his default.” Jackson v. Stewart, 6 John., 3. And Chancellor Walworth said: “As a general rule, when a suit is commenced or defended, or any other ju’oceeding is had therein, by one of the regularly licensed solicitors, it is not the practice of tlie Court to inquire into his authority to appear for Ms supposed client” (Insurance Co. v. Oakley, 9 Paige, 196; Weeks on Attorneys, secs. 198, 199), nor, of course, to stop and ascertain the extent of his authority.

The cases we have just cited were approved by this Court in Rogers v. McKenzie, supra. We refer especially to Morris v. Grier, 76 N. C., 410, and Hairston v. Garwood, 123 N. C., 345. As said by Kent, G. J., in Denton v. Noyes, 6 John. (N. Y.), 295: “If the attorney for the defendant be not responsible or perfectly competent to answer to his assumed client, the Court will relieve the party against the judgment, for otherwise a party might be undone. I am willing to . go still further and, in every such ease, let the defendant in to a defense of the. suit. To carry the interference further beyond this point would be forgetting that there is another party in the case equally entitled to our protection.” This statement of the law was quoted with *545approval and applied in the 'recent case of Manufacturing Co. v. Railway, 125 N. C., 17. In onr case it is admitted that the attorney was authorized to represent the defendant, and if he did not act with judgment and in accordance with private instructions as to how he should conduct the suit, the remedy is not by setting aside the judgment, for no such case is shown in the record as entitles the defendant, under the authorities, to that relief.

No Error.