Wilbanks v. Wilbanks , 159 Ga. 196 ( 1924 )

Hill, J.

(After stating the foregoing facts.)

The question to be determined in this case is whether the plaintiff in error, after having agreed to a decree being rendered against him, can, after the decree has been complied with by him in part, afterwards file a motion to set aside the decree on the ground that, when the defendant dismissed her answer which is in the nature of a cross-petition asking for alimony and divorce, there are no pleadings to authorize it. In the motion to set aside it is not alleged that the decree was obtained either by fraud, accident, or mistake, but the record clearly shows that the decree was in accordance with the .voluntary agreement on the part of the plaintiff and the defendant. The only contention is, on the part of the plaintiff in error, that he was to pay alimony for the benefit of his minor daughter until she was eighteen years of age, instead of the time stated in the decree, viz., when she arrived at twenty-one years of age. The plaintiff did pay the alimony until his daughter became eighteen years of age, and declined to pay thereafter for the reasons stated above. The evidence for the plaintiff, who testified for himself, and the evidence for the defendant, is conflicting on this point. Alvin L. Bichards, the attorney who represented the plaintiff in his original divorce suit, and who agreed to the decree which is now being attacked in behalf of his client, testified, on the trial to set aside the verdict and judgment, as follows: He was employed by Whitford C. Wilbanks to represent him in a divorce suit filed by him against his wife, in which a verdict had been rendered for $6000 in favor of his wife for alimony. “Wilbanks had gone to Alabama to avoid paying the alimony. After several letters had passed between us, and consultation with Mrs. Wilbanks’ lawyer, the order of January 28, 1921, was agreed to by parties, the same being signed by Judge W. D. Ellis. In order to get the case in the undefended divorce calendar and thus secure a divorce sooner-than in the calendar of defended cases, it was necessary to dismiss the cross-bill and answer of the defendant. This was agreed to by the defendant, and I took the verdict and judgment according to the agreement between the parties. I do not remember whether in discussing the matter to Mr. Wilbanks with us, the words twenty-one years old, or age, or her majority [were used]. I did not know that it was understood by Mr. Wilbanks until the child became eighteen years old. When he came to see me I told him the agreement was to pay $20 per month until she became twenty-one years of age. This judgment signed by Judge Ellis, and the verdict and judgment taken at the trial was consented to by both parties, and both were prepared by myself as attorney for W. C. Wilbanks. In each case were [I was] the active party in securing the consent of the defendant to the orders, verdicts, and judgments taken in the case.”

In Adkins v. Bryant, 133 Ga. 465 (66 S. E. 21, 134 Am. St. R. 211)J this court held that “A verdict and judgment rendered with the consent of counsel is binding upon the client, in the absence of fraud and collusion upon the part of the counsel with whose consent such verdict and judgment is rendered.” In the instant case there is no allegation of fraud or collusion upon the part of the counsel who obtained the consent decree. In Williams v. Simmons, 79 Ga. 649 (7 S. E. 133), it was said: “When a suitor comes into court, competent to select counsel, and does select counsel, no matter who the suitor may be, or how much married, the counsel is there for the purpose of representing the client; and whatever the counsel assents to, the client assents to. There is full power on the part of the counsel to represent the client, and it is just the same as if the client were there in person; and it is no answer to a decree, a solemn judgment of a court, for -the client to come in and say that the counsel misrepresented the client’s interest, or did not represent the client’s wishes. Let the client see that the counsel conforms to instructions; and if there is any injury by failing to do it, let the counsel answer for it, and not the other party.” In Driver v. Wood, 114 Ga. 296 (40 S. E. 257), it was held: “A decree rendered in accordance with a consent verdict, though it may not be valid-ás a judgment of the court, will, in the absence of fraud, accident, or mistake, be operative as an agreement binding upon all the parties thereto.” Pleadings may be dispensed with by consent. 33 Corpus Juris, 1132, § 80. We are therefore of the opinion that tlie court did not err in overruling plaintiff’s motion to set aside the verdict and decree, and in rendering the judgment complained of on the rule for contempt.

Judgment affirmed.

All the Justicesi concur.