Johnson v. Johnson.

This was a motion by the plaintiff and the defendant, jointly, to set aside a judgment rendered in this cause at May Term, 1905. The motion was denied, and the plaintiff and defendant appealed. This action was brought to annul a marriage contract entered into between the plaintiff and the defendant on 2 December, 1903, upon the ground that the plaintiff was at the time totally incapable to enter into such contract, and also to set aside a deed (92) which the plaintiff had executed to the defendant. Both parties were represented by counsel, and the following issues were submitted to the jury:

1. Was the plaintiff, at the time of her alleged marriage with the defendant, totally incapable to make or to enter into such contract for a proper, legal, and binding marriage, from want of will or understanding? Ans.: Yes.

2. Was the plaintiff, at the time of the execution of her deed to the defendant, incapable of executing a valid deed, for want of reason and understanding? Ans.: Yes.

3. What amount is the defendant entitled to recover by reason of his improvements upon the premises? Ans.: $75.

The notice of the motion to set aside the judgment rendered was served on all the counsel who appeared respectively for the plaintiff and defendant at the trial. It is signed by N.Y. Gulley and R. H. Dixon, "attorneys for Adella V. Johnson and W. Mangum Johnson." The grounds of the motion are that the complaint is not properly verified so as to give the Superior Court jurisdiction as in an action for divorce, and that the cause was tried at the term to which the summons was returnable.

Reasons based upon principles of sound public policy compel us to dismiss this proceeding to set aside the judgment. We are of opinion that the same counsel cannot represent both parties to the action. In so holding, we mean no reflection whatever upon the reputable and eminent counsel, who have undertaken together to represent both parties in making the motion. They have argued strenuously before us that there are no conflicting interests, and that therefore they can properly represent both parties. We are compelled to differ from them.

In Moore v. Gidney, 75 N.C. 34, the Court says: "The law does not tolerate that the same counsel may appear upon both sides of an adversary proceeding even colorably, and in general will not permit a judgment so affected to stand, if made the subject of exception (93) in due time by the parties injured thereby." To the same purport are the cases of Gooch v. Peebles, 105 N.C. 411, and Molyneux v. Huey, 81 N.C. 113.

To permit both parties to be represented jointly by the same counsel upon this motion would be simply laying the foundation for future complaint, upon the part of the plaintiff or defendant, in case either should be dissatisfied with the action of the court if the judgment should be set aside. If the plaintiff was so feeble-minded that she could not contract a valid marriage, how do we know that she is capable now to take legal action to set aside the judgment? The judgment rendered cannot be set aside by consent. If either party desires to move to set it aside, it must be done in an adversary proceeding after due notice served upon the other party. Notice to counsel of record in the original action is not sufficient. Upon the hearing of such motion, the respective parties must appear by their individual counsel. The counsel in the original action are not proper or necessary parties to a proceeding to set the judgment aside.

Proceeding dismissed.