Cason v. . Shute

189 S.E. 494, 211 N.C. 195, 1937 N.C. LEXIS 37

• Court: Supreme Court of North Carolina
• Decided: January 27, 1937
• Status: Published

Opinion

Stacy, C. J.

It is apparent that on the hearing the matter became entangled in the net of form. This ought not to deprive the parties of their rights.

On the question of recalling the execution, Williams v. Dunn, 158 N. C., 399, 74 S. E., 99; S. c., 163 N. C., 206, 79 S. E., 512, and whether plaintiff consented to the judgment of 1931, Morgan v. Hood, Comr., ante, 91, the proper procedure is by motion in the cause. Deitz v. Bolch, 209 N. C., 202, 183 S. E., 384; Bank v. Penland, 206 N. C., 323, 173 S. E., 345; Register Co. v. Holton, 200 N. C., 478, 157 S. E., 433; Weir v. Weir, 196 N. C., 268, 145 S. E., 281; Aldridge v. Loftin, 104 N. C., 122, 10 S. E., 210; Long v. Jarratt, 94 N. C., 443.

As we understand the record, the execution issued by the clerk would seem to be irregular, as the amount could only be determined by evidence dehors or aliunde. The clerk was not authorized to make this determination, which apparently he undertook to do without notice or opportunity to be heard. In any event, the motion to recall, until the controverted amount could be ascertained by a jury, should have been allowed. Stanley v. Parker, 207 N. C., 159, 176 S. E., 279.

The judgment entered at the October Term, 1931, being a consent judgment, is to be construed, and accordingly dealt with, as if the parties had entered into a written contract, duly signed and delivered, embodying therein the terms of said judgment. Bunn v. Braswell, 139 N. C., 135, 51 S. E., 927. It stands as the agreement of the parties, made a matter of record at their request, and with the permission and approval of the court. Speaking to the question in Wilcox v. Wilcox, 36 N. C., 36, Gaston, J., says a consent judgment “is in truth the decree of the parties”; and Dillard, J., in Edney v. Edney, 81 N. C., 1, defines it as follows: “A decree by consent is the decree of the parties, put on file with the sanction and permission of the court; and, in such decree, the parties, acting for themselves, may provide as to them seems best concerning the subject matter of the litigation.” Vaughan v. Gooch, 92 N. C., 524. “Consent judgments are, in effect, merely contracts of the parties, acknowledged in open court and ordered to be recorded.” Clark, C. J., in Bank v. Comrs., 119 N. C., 214, 25 S. E., 966. “A judgment by consent is not the judgment or decree of the court. It is the agreement of the parties, their decree, entered upon the record with the sanction of the court. It is the act of the parties rather than that of the court.” Brown, J., in Belcher v. Cobb, 169 N. C., 689, 86 S. E., 600. See, also, Ellis v. Ellis, 193 N. C., 216, 136 S. E., 350; Bank v. Mitchell, 191 N. C., 190, 131 S. E., 656; Distributing Co. v. Carraway, 189 N. C., 420, 127 S. E., 427; Morris v. Patterson, 180 N. C., 484, 105 S. E., 25; Gardiner v. May, 172 N. C., 192, 89 S. E., 955; Harrison v. Dill, 169 N. C., 542, 86 S. E., 518; Lynch v. Loftin, 153 N. C., 270, 69 S. E., 143; Henry v. Hilliard, 120 N. C., 479, 27 S. E., 130; 15 R. C. L., 645.

Error.