Briar Metal Products, Inc. v. Smith , 64 N.C. App. 173 ( 1983 )

306 S.E.2d 553 (1983)

BRIAR METAL PRODUCTS, INC.
v.
Albert SMITH.

No. 8228SC1089.

Court of Appeals of North Carolina.

September 20, 1983.

Forbis & Grossman by Steven A. Grossman, Kannapolis, for plaintiff.

Marvin P. Pope, Jr., Asheville, for defendant.

WELLS, Judge.

In one argument, plaintiff brings forward exceptions to findings of fact numbered 4. and 7. and to the single conclusion of law contained in Judge Allen's order. We deal with these exceptions seriatim.

There was evidence before Judge Allen which would support his finding of fact number 4. Such a finding, however, is not determinative of the basic issue before us in this case. The evidence before Judge Allen was conflicting as to whether plaintiff's consent to the judgment entered by Judge Ferrell subsisted at the time of entry of that judgment. Plaintiff's evidence tended to show that the authority previously given by plaintiff to his attorney to consent had been withdrawn prior to 30 March 1981 and that plaintiff's attorney stated this to Judge Ferrell. Defendant's evidence tended to show plaintiff's prior authority to plaintiff's attorney was never withdrawn. A consent judgment is valid only if all parties give their unqualified consent at the time the court sanctions the agreement and promulgates it as a judgment. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963), citing Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794 (1948) and King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945). Where such consent did not subsist at the time of entry the judgment is void. Id. Under the evidence before him, it was incumbent upon the Judge to make a finding as to whether plaintiff's consent subsisted at the time of entry of Judge Ferrell's judgment.

While Judge Allen's finding of fact number 7. is also supported by the evidence, neither is it determinative of the issue in this case. If Judge Ferrell's judgment may be found to be void for lack of consent, see Overton, supra, then a motion in the cause is the correct procedure for presenting that question to the trial court, Overton, supra. Such a motion must be made within "a reasonable time." Rule 60(b)(4). Whether an appeal was taken from the consent judgment under attack is not pertinent to the issue of whether the Rule 60(b) motion should be granted, particularly as to whether the Rule 60(b) motion was filed within a reasonable time.

Judge Allen's findings of fact are not sufficient to support his conclusion of law. This case must be remanded for proper findings of fact as to (1) whether plaintiff's Rule 60(b) motion was made within a reasonable time, and if so, (2) whether plaintiff's consent subsisted at the time of entry of Judge Ferrell's judgment.

Reversed and remanded.

ARNOLD and EAGLES, JJ., concur.