Hoell v. . White

86 S.E. 569, 169 N.C. 640, 1915 N.C. LEXIS 277

• Court: Supreme Court of North Carolina
• Decided: October 13, 1915
• Status: Published

Opinion

Clark, C. J.

Foreclosure by the court was not asked for in the answer, and there was no counterclaim or cross action set out against the plaintiffs. While a party is entitled to any relief justified by his pleadings and proof, whether a prayer to that effect is made or not, there must be allegata and proof to justify the judgment rendered. While courts go far to sustain judgments taken in ordinary course, with the assent of counsel, there cannot be a consent judgment entered by counsel without the knowledge or consent of the client, which in its scope is outside of any matter set out in the pleadings. This is recognized in Hairston v. Garwood, 123 N. C., 345.

In this case there was no pleading which justified a decree of foreclosure against the plaintiffs, and without her consent there could be no judgment agreed to by her counsel to that effect. Besides, there has been no jury finding on the issue raised by the pleadings, whether the mortgage note has been paid. Without that there could be no judgment of foreclosure. The nonsuit by the judge was simply his finding that a case was not made out by the evidence offered for plaintiffs for cancellation. It does not justify an order for foreclosure against the plaintiff.

The judgment entered for a nonsuit under the Hinsdale Act is not appealed from, but the additional entries to which the plaintiff excepted were erroneous, and must be stricken out.

Reversed.