Cranford v. Steed Ex Rel. Steed , 268 N.C. 595 ( 1966 )

151 S.E.2d 206 (1966) 268 N.C. 595

Carson C. CRANFORD
v.
Mark Steven STEED, by His Guardian ad Litem Ruth Morris Steed, and Ruth Morris Steed.

No. 614.

Supreme Court of North Carolina.

November 30, 1966.

Walker, Anderson, Bell & Ogburn, Asheboro, for plaintiff appellee.

Ottway Burton, Asheboro, for defendant appellants.

BOBBITT, Justice.

The complaint having been served on defendants on January 11, 1966, the time for filing answer had not expired on January 26, 1966, the date the purported consent judgment was entered. Defendants' motion for an extension of time to file answer or other pleading was filed February 10, 1966, within thirty days after service of complaint. On February 10, 1966, the assistant clerk extended the time for defendants to plead through March 2, 1966. Hence, but for said purported consent judgment of January 26, 1966, defendants' pleadings were filed in apt time. G.S. § 1-125.

On January 26, 1966, when the purported consent judgment was entered, a guardian ad litem had not been appointed to represent Mark. Mrs. Steed was appointed guardian ad litem on March 1, 1966. Assuming Mark was an infant without general or testamentary guardian on January 26, 1966, this fact alone would seem sufficient to require that the purported consent judgment of January 26, 1966, be vacated as to him. 2 Strong, N.C. Index, Infants § 3. However, the principal contention of both defendants is that the purported consent judgment should be declared void and set aside because it was entered without their authority, consent or knowledge.

Decision requires application of the following well established legal principles, viz.:

"A judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court. (Citations) It is not a judicial determination of the rights of the parties and does not purport to represent the judgment of the court, but merely records the pre-existing agreement of the parties. (Citations) It acquires the status of a judgment, with all its incidents, through the approval of the judge and its recordation in the records of the court." McRary v. McRary, 228 N.C. 714, 719, 47 S.E.2d 27, 31. Accord: Owens v. Voncannon, 251 N.C. 351, 354, 111 S.E.2d 700, 703; 3 Strong, N.C. Index, Judgments § 8.

"The power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto, and the judgment is void if such consent does not exist at the time the court sanctions or approves the agreement of the parties and promulgates it as a judgment. (Citations)" Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794, 796. Accord: Stanley v. Cox, 253 N.C. 620, 632, 117 S.E.2d 826, 834; 3 Strong, N.C. Index, Judgments § 8.

"(W)hen a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause." King v. King, 225 N.C. 639, 35 S.E.2d 893, 894 and cases cited. Accord: Brown v. Owens, 251 N.C. 348, 350, 111 S.E.2d 705, 707; Overton v. Overton, 259 N.C. 31, 37, 129 S.E.2d 593, 598; 3 Strong, N.C. Index, Judgments § 25.

On May 2, 1966, when the case was calendared for hearing on plaintiff's motions to dismiss the answers and counterclaims, there was on file and undetermined defendants' motion to vacate said purported consent judgment of January 26, 1966. The basis of plaintiff's said motions was his contention that the purported consent judgment was a final judgment and therefore no further proceedings in the cause were permissible. Hence, a determination of defendants' motion to vacate the purported consent judgment was a prerequisite to decision of plaintiff's motions to dismiss defendants' answers and counterclaims. It was error to proceed to a consideration and determination of plaintiff's said motions without first affording defendants an opportunity to be heard on their pending motion to vacate said purported consent judgment.

The orders dismissing defendants' answers and counterclaims are vacated and the cause is remanded with direction that a hearing be had and determination made on defendants' motion to vacate said purported consent judgment of January 26, 1966. Further proceedings herein will depend on the decision made pursuant to such hearing.

Error and remanded.