Sobka v. Presti

J. H. G-ilijs, P. J.

The plaintiff, John Sobka, Jr., by his next friend, John Sobka, Sr., brought.this action for damages sustained when he was hit on the head with a basketball thrown by the defendant, Prank Prestí, a minor.

Defendant moved for summary judgment on the grounds that plaintiff had entered into and received satisfaction from a consent judgment in an action involving other parties, but involving the same injuries. In the argument on the motion the following colloquy took place:

■ '“Mr. Jaques [attorney for plaintiff] : This is a consent judgment tantamount to a release and not a judicially derived and determined judgment..

“The Court: This was a judgment. What’s the difference between a consent judgment and a judicially determined judgment?

“Mr. Jaques: A'consent judgment does not have the same dignity as a judgment rendered by the court.

“The Court: You mean if it is a consent judgment, it’s not a judgment that he can use as a defense? I deny that theory.”

The court granted the defendant’s motion for summary judgment.

' On this appeal the parties have devoted considerable time to a discussion on whether a motion for summary judgment or accelerated judgment was the proper vehicle to bring the defendant’s claimed defense to the attention of the court. We needn’t discuss this problem. The judgment below must be reversed for a more basic reason.

A consent judgment is essentially a settlement and it does not represent the full measure of satisfaction of a party’s cause of action. See Ortiz v. Travelers Insurance Company (1966), 2 Mich App 548, 555.

Judgment reversed. Costs to appellant.

Fitzgerald and Quinn, JJ., concurred.