#### W. L. HENDRICKS v. TOWN OF CHERRYVILLE.

(Filed 7 May, 1930.)

1. Judgments K b — Where notice of revocation of attorney’s authority is not given, judgment may not be set aside for surprise, etc.

Where the party to an action employs an attorney who files his pleadings in defense, and afterwards consents to a trial on a certain day under an agreement that the plaintiff would not ask for a recovery exceeding a certain amount, and the trial is accordingly had, the motion of the party to set aside the judgment upon the ground of surprise, excusable neglect, etc., for that the attorney’s authority acting therein had been revoked, will be denied when no notice of such revocation had been given to the court or to the adverse party.

2. Attorney and Client B c — Authority of attorney of record continues until revocation and notice to court or adverse party.

Where an attorney of record in an action appears for a party thereto, his employment continues until his authority is revoked and notice of such revocation is given the court or the adverse party.

3. Trial A b — Knowledge of attorney of date of trial is imputed to client.

The knowledge of an attorney for a party that an action against him is placed on the calendar for a certain date is imputed to the party litigant.

Appeal by defendant from order of *Shaw,*Jat December Term, 1929, of GastoN.

Affirmed.

Tbis action to recover damages resulting from a trespass by defendant upon tbe lands of tbe plaintiff, was tried before Sbaw, J., and a jury at August Term, 1929, of tbe Superior Court of Gaston County. Upon tbe verdict rendered at tbe trial, there was a judgment tbat plaintiff recover of tbe defendant, upon tbe cause of action alleged in tbe complaint, tbe sum of $300, and tbe costs of tbe action.

At December Term, 1929, of said court, tbe action was beard on defendant’s motion tbat said judgment be set aside on tbe ground tbat defendant was not present or represented by counsel at tbe trial at tbe August Term, 1929, of said court because of its mistake, inadvertence, surprise and excusable neglect, and on tbe further ground tbat defendant has a good and meritorious defense to tbe action.

*660Upon tbe bearing of defendant’s motion, tbe judge found tbat tbe defendant was represented at tbe August Term, 1929, of tbe court by its attorney of record, wbo bad filed its answer to tbe complaint, and wbo bad entered an appearance in tbe action as tbe attorney for tbe defendant : tbat said attorney of record bad appeared at said term of tbe court in bebalf of tbe defendant, and bad consented tbat tbe trial of tbe action should be continued from tbe day on wbicb it was set on tbe calendar for trial to a subsequent day during said term; and that said attorney was not present when tbe action was called for trial and was tried.

Tbe judge further found tbat defendant bad admitted in its answer to tbe complaint tbat it was liable to tbe plaintiff upon tbe cause of action alleged therein; and tbat tbe only matter in issue between tbe plaintiff and tbe defendant was *the*amount wbicb plaintiff was entitled to recover of defendant as damages for tbe trespass wbicb defendant bad committed on plaintiff’s land. Tbe amount demanded in tbe complaint as such damages was $1,000; tbe defendant in its answer alleged tbat tbe damages did not exceed tbe sum of $35.00. During tbe term, defendant’s attorney of record informed tbe attorney for plaintiff and tbe court tbat it was agreeable to defendant tbat tbe damages should be assessed by tbe jury at $300. It was agreed by and between tbe attorney for tbe plaintiff and said attorney for tbe defendant, tbat tbe action should be tried at said August Term, 1929, of tbe court, and tbat tbe plaintiff would not contend tbat tbe jury should answer tbe issue as to damages in a sum exceeding $300. At tbe trial evidence was submitted to tbe jury and upon this evidence tbe issue involving tbe amount which plaintiff was entitled to recover was answered “$300.” Judgment was rendered accordingly.

Prior to August Term, 1929, tbe attorney of record for defendant in this action bad ceased to be tbe general attorney of tbe defendant. No notice bad been given to plaintiff’s attorney or to tbe court by tbe defendant tbat its attorney of record was no longer its attorney in this action. There was no evidence tending to show tbat said attorney of record bad been notified by defendant tbat bis authority to appear in this action and to represent tbe defendant therein as its attorney bad been revoked. Nor was there evidence tending to show tbat said attorney bad been negligent or unfaithful in tbe performance of bis duties as attorney for defendant in this action.

The judge further found tbat tbe judgment rendered on tbe verdict at tbe August Term, 1929, of tbe court was not rendered through tbe mistake, inadvertence, surprise or excusable neglect of defendant. Upon this finding, tbe motion of defendant was denied.

From tbe order denying its motion, tbe defendant appealed to tbe Supreme Court.

*661
      *W. S. Sanders for plcumtiff.*

*A. O. Jones asad M. A. Stroup for defendant.*

Per Curiam.

Upon the facts found by the judge, as fully set out in his order, his finding that the judgment rendered on the verdict at the August Term, 1929, of- the court, was not rendered through the mistake, inadvertence, surprise or excusable neglect of defendant, was correct. There was, therefore, no error in the order denying defendant’s motion that the said judgment be set aside. *Norton v. McLaurin,*125 N. C., 185, 34 S. E., 269.

The defendant was represented in this action at the August Term, 1929, of the court by the attorney who had filed its answer, and who had entered an appearance for defendant as its attorney in the action. If the authority of this attorney to represent defendant in this action, as its attorney, had been revoked, no notice of such revocation had been given to the attorney for the plaintiff or to the court. In the absence of such notice, his authority to represent the defendant as its attorney in this action, continued. His knowledge that the action was on the calendar for trial at the August Term, 1929, of the court was imputed to the defendant. The law will not permit the defendant to repudiate its attorney of record after the trial, resulting in a judgment against it. There was no evidence offered at the hearing of defendant’s motion terming to show that defendant had not informed its attorney of record that it was agreeable to it that plaintiff’s damages should be assessed by the jury at $300; said attorney did not consent to a judgment in this action. He agreed only that the aetion should be tried at the August Term, 1929, upon plaintiff’s agreement that he would not ask the jury to return a verdict in excess of $300. This agreement was complied with. The order is

Affirmed.