Johnson v. Johnson.

Brown, J.

This action was brought to annul a marriage contract entered into between the plaintiff and the defendant on December 2, 1903, upon tbe ground tbat tbe plaintiff was at tbe time totally incapable to enter into sucb contract, and also to set aside a deed wbicb tbe plaintiff bad executed to tbe defendant. Both parties were represented by counsel, and tbe following issues were submitted to tbe jury:

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

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

3. What amount is tbe defendant entitled to recover by reason of bis improvements ujion tbe premises? Ans. $75.

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

Reasons based upon principles of sound public policy compel us to dismiss this proceeding to set aside tbe judgment. We are of opinion tbat tbe same counsel cannot represent both parties to tbe action. In so bolding, we mean no reflection whatever upon tbe reputable and eminent counsel, who have undertaken together to represent both parties in making tbe motion. They have argued strenuously before us tbat 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: “Tbe 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 in due time by the parties injured thereby.” To the same purport are the cases of Gooch v. Peebles, 105 N. C., 411, and Mollineux 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.