Ballard Ex Rel. Smith v. Hunter , 12 N.C. App. 613 ( 1971 )

184 S.E.2d 423 (1971) 12 N.C. App. 613

Sandra BALLARD, a Minor, by her next friend, Mrs. Frances Smith
v.
Jack H. HUNTER et al.

No. 7126SC720.

Court of Appeals of North Carolina.

November 17, 1971. Certiorari Denied January 4, 1972.

Warren C. Stack, Charlotte, for plaintiff appellant.

Carpenter, Golding, Crews & Meekins by John G. Golding, Charlotte, for defendant appellee.

Certiorari Denied by Supreme Court January 4, 1972.

MALLARD, Chief Judge.

G.S. § 1B-3(e) of the Uniform Contribution among Tort-Feasors Act provides:

"The recovery of judgment against one tort-feasor for the injury or wrongful death does not of itself discharge the other tort-feasors from liability to the claimant. The satisfaction of the judgment discharges the other tort-feasors from liability to the claimant for the same injury or wrongful death, but does not impair any right of contribution." (Emphasis Added)

The question for decision on appeal, therefore, is whether there was a valid judgment as to the defendants Hunter, accepted by the plaintiff and "satisfied" within the meaning of the statute. We hold that there was not.

Whether we view the instrument submitted by the defendants Hunter, and the subsequent clerical entries, as a "Confession of Judgment," "Offer of Judgment" or "Consent Judgment" under the statutes in effect at the time, or merely as an attempted compromise or settlement, the result is the same: It was in the nature of an offer by the defendants Hunter to the plaintiff to settle her claim for a lesser amount than was claimed to be due and could not bind the minor plaintiff unless accepted on her behalf by someone authorized and empowered by law to do so. See 2 McIntosh, N.C. Practice 2d, § 1684, wherein it is stated:

"A confession of judgment without action is a consent judgment * * *. The judgment depends upon the consent of the parties, and the court gives effect to it as the agreement of the parties. It would not be valid unless the parties consented, nor could it affect one who was not a party. Since its validity is based upon the contract of the parties, there must be the authority and capacity to contract. In the case of infant parties, the next friend, guardian ad litem or guardian cannot consent to a judgment or compromise without the investigation and approval by the court." (Emphasis Added)

See also The Lessee of Livingston, et al. v. Moore, et al., 7 Pet. (32 U.S.) 469, 8 L.Ed. 751 (1833) and 5 Strong, N.C. Index 2d, Judgments, § 8.

In the present case the record does not indicate that the "Confession of Judgment" by the defendants Hunter was presented to a judge of the superior court for approval, nor does an investigation or approval appear. It does appear that the minor plaintiff's attorney petitioned the court for and was granted an award of counsel fees from the amount deposited by the defendants Hunter and that the balance of the amount deposited, less certain costs, was paid to the minor's duly appointed guardian. Nevertheless, such transactions were improper, and the "Confession of Judgment" and subsequent clerical entries were ineffective to bind the minor plaintiff in the absence of the requisite investigation and approval by the court.

The provisions of G.S. § 1-248 in effect at the time and under which the assistant clerk of the Superior Court of Mecklenburg County purported to act on 8 December 1969 did not authorize him to enter a judgment herein. The subsequent petition of plaintiff's attorney and her next friend for "attorney fees," the order of Judge Copeland awarding such fees, and the guardian's receipt of the balance of the money deposited by the Hunters in the clerk's office could not and did not ratify and give validity to the purported judgment. A judgment or compromise settlement negotiated by a next friend or guardian without the investigation and approval of the court is invalid. Wachovia Bank & Trust Company v. Buchan, 256 N.C. 142, 123 S.E.2d 489 (1962); Johnston County v. Ellis, 226 N.C. 268, 38 S.E.2d 31 (1946); Butler v. Winston, 223 N.C. 421, 27 S.E.2d 124 (1943); Ferrell v. Broadway, 126 N.C. 258, 35 S.E. 467 (1900); State ex rel. Hagins v. Phipps, 1 N.C.App. 63, 159 S.E.2d 601 (1968) and 4 Strong, N.C. Index 2d, Infants, § 5.

We do not deem it necessary to reiterate at length the familiar doctrine in this State that the courts are vigilant in the protection of the interest of infants.

In Oates v. Texas Company, 203 N.C. 474, 166 S.E. 317 (1932), the Supreme Court upheld the validity of a prior judgment in favor of a minor plaintiff specifically on the grounds that "(h)ere the judgment recites an investigation by the trial court and a finding that the settlement was just and reasonable." There is no such recital or finding in the present case. Due to the absence in the record on appeal of anything to disclose an "investigation and approval by the court," the purported judgment in favor of the minor plaintiff, Sandra Ballard, is a nullity and its purported "cancellation" by her guardian is of no effect. Where the prior judgment is invalid, there can be no effective "satisfaction" of it within the meaning of G.S. § 1B-3(e). Therefore, the trial judge committed error when he entered judgment in favor of the defendants Wilson, granting their motion for summary judgment on the grounds that the action against them was barred under the provisions of G.S. § 1B-3(e).

Reversed.

HEDRICK and GRAHAM, JJ., concur.