State v. Barley

81 S.E.2d 772 (1954)

240 N.C. 253

STATE v. BARLEY.

No. 361.

Supreme Court of North Carolina.

May 5, 1954.

*773 Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., and Gerald F. White, Raleigh, Member of Staff, for the State.

W. E. Gavin, Asheboro, Gavin, Jackson & Gavin, Sanford, for defendant appellant.

JOHNSON, Justice.

The relation of attorney and client rests on principles of agency, and not guardian and ward. While an attorney has implied authority to make stipulations and decisions in the management or prosecution of an action, such authority is usually limited to matters of procedure, and, in the absence of special authority, ordinarily a stipulation operating as a surrender of a substantial right of the client will not be upheld. See Deitz v. Bolch, 209 N.C. 202, 183 S.E. 384; Bizzell v. Auto Tire & Equipment Co., 182 N.C. 98, 108 S.E. 439; 5 Am.Jur., Attorneys at Law, Sections 91 and 92.

The defendant in apt time disavowed the plea of nolo contendere as tendered by counsel and continued to protest his innocence throughout the proceedings below.

On the record as presented we conclude he is entitled to his day in court before a jury. To that end the judgment below will be vacated and set aside and the cause remanded for trial on the defendant's plea of not guilty.

Reversed and remanded.