State Highway Commission v. Rowson

169 S.E.2d 132 (1969)

5 N.C. App. 629

STATE HIGHWAY COMMISSION v. Henry Wilson ROWSON, Abraham Rowson, Jr., Executor, Known and Unknown Born and Unborn Heirs of Abraham Rowson, Deceased: and Richard Powell, Ancillary Administrator.

No. 692SC232.

Court of Appeals of North Carolina.

August 13, 1969.

*133 Atty. Gen. Robert Morgan, Deputy Atty. Gen. Harrison Lewis and Staff Atty. *134 James E. Magner, Raleigh, for State Highway Commission, plaintiff appellee.

Richard Powell, Greenville, for defendants appellants.

PARKER, Judge.

It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. King v. King, 225 N.C. 639, 35 S.E.2d 893; Keen v. Parker, 217 N.C. 378, 3 S.E.2d 209. "Moreover, the power of a Court to sign a consent judgment depends upon the unqualified consent of the parties thereto, King v. King, supra, and `the consent of the parties must still subsist at the time the court is called upon to exercise its jurisdiction and sign the consent judgment.'" Lee v. Rhodes, 227 N.C. 240, 242, 41 S.E.2d 747, 748. The last cited case is determinative of the case presently before us. In Lee v. Rhodes, supra, after the trial had been in progress for two days, the parties agreed to a settlement, the terms of which were communicated to the trial judge by plaintiff's counsel in open court, in the presence of the plaintiff, who made no objection thereto. The trial judge expressed approval of the settlement. However, when several days later judgment was tendered in accordance with the terms of the compromise agreement, the plaintiff repudiated the agreement. On appeal the North Carolina Supreme Court in an opinion by Denny, J. (later C.J.) held that the trial court "was without power to sign a judgment, based upon the consent of the parties, after one of the parties repudiated the agreement and had withdrawn his consent thereto."

Ordinarily when a party to a purported consent judgment denies that he actually consented thereto, the question is properly raised by a motion in the cause. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593; King v. King, supra. In the present case, however, the consent judgment shows on its face that the appealing defendant, Henry Wilson Rowson, had repudiated his agreement and no longer consented to the judgment at the time it was signed. Therefore the judgment was void upon its face, and it was not necessary for the non-consenting defendant to move to set it aside. The judgment appealed from being void, the same should be stricken and this cause remanded to the superior court for trial.

Reversed and remanded.

MALLARD, C. J., and BRITT, J., concur.