Jeffries v. Super Service Garage, Inc.

94 S.E.2d 841, 244 N.C. 745, 1956 N.C. LEXIS 505

Opinion

Per Curiam.

When the defendants consented to the withdrawal of the appeal on 9 April 1956, no right existed thereafter to grant a motion for a new trial on the ground of newly discovered evidence at the next succeeding or any other term of the Superior Court. Lancaster v. Bland, 168 N.C. 377, 84 S.E. 529; S. v. Casey, 201 N.C. 620,161 S.E. 81. Moreover, it was agreed, in connection with the withdrawal of the appeal, that the judgment shall remain in full force and effect. Thus, it became a consent judgment which may not be set aside without the consent of the parties, except for fraud or mutual mistake. Spruill v. Nixon, 238 N.C. 523, 78 S.E. 2d 323.

The court below correctly held that it had no power to entertain the motion of the defendants for a new trial on the ground of newly discovered evidence.

Affirmed.

Johnson, J., not sitting.