Haddock v. Waters , 19 N.C. App. 81 ( 1973 )

BRITT, Judge.

In their sole assignment of error, defendants contend the judgment appealed from is invalid for the reason that the court did not make findings of fact as required by G.S. 1A-1, Rule 52. Plaintiffs contend that the judgment was based upon the consent of the parties, therefore, Rule 52 is not applicable.

The record discloses that defense counsel’s tender of judgment on behalf of the male defendant was made in open court with all parties to the action present. After discussing the feasibility of the tender with the attorneys representing plaintiffs and defendants, the court stated that its judgment would be based on the tender.

While better practice dictates that parties and their attorneys sign a consent judgment, signatures of parties or their attorneys are not necessary if consent is made to appear. Stanley v. Cox, 253 N.C. 620, 117 S.E. 2d 826 (1961). In Gardiner v. May, 172 N.C. 192, 196, 89 S.E. 955 (1916), the court said: “A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client and not to have betrayed his confidence or to have sacrificed his right.” The authority of a party’s attorney is presumed when he professes to represent the party and the fact that the attorney of record fails to sign the judgment does not affect its validity. In re Johnson, 9 N.C. App. 102, 176 S.E. 2d 31 (1970), aff’d, 277 N.C. 688, 178 S.E. 2d 470 (1971). 5 Strong’s N. C. Index 2d, Judgments, § 8, p. 20. Nevertheless, a party may rebut the presumption by showing want of authority. In re Johnson, supra.

Absent a showing that defendants’ attorney of record at the trial was without authority to make the tender of judgment, we hold that the judgment based on the tender is valid as a consent judgment. However, we point out that the tender was made solely on behalf of the male defendant and the judgment applies only to him. The judgment in no way binds the feme defendant.

For the reasons stated, the judgment is

Affirmed.

Judges Morris and Parker concur.