Lalanne v. Lalanne

Court of Appeals of North Carolina

Lalanne v. Lalanne

259 S.E.2d 402, 43 N.C. App. 528, 1979 N.C. App. LEXIS 3110

CourtCourt of Appeals of North Carolina

DecidedNovember 6, 1979

Docket7915DC359

StatusPublished

Cited by3 cases

This text of 259 S.E.2d 402 (Lalanne v. Lalanne) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lalanne v. Lalanne, 259 S.E.2d 402, 43 N.C. App. 528, 1979 N.C. App. LEXIS 3110 (N.C. Ct. App. 1979).

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Opinion

HILL, Judge.

The judgment entered in this cause filed on 29 January 1979 must be revoked. Ordinarily, where a judgment is rendered in open court and some memorandum or minute of the note appears of record showing what the judgment is, formal judgment based thereon may be later entered. This rule does not apply to a con *530 sent judgment, which requires the consent of the parties to subsist at the time it is signed in order to give the court jurisdiction. A consent judgment is not, strictly speaking, a judgment of the court, but is merely the contract of the parties entered upon the records of a court of competent jurisdiction with its approval and sanction, and such contract cannot be modified or set aside without the consent of the parties thereto. Lee v. Rhodes, 227 N.C. 240, 41 S.E. 2d 747 (1947); Highway Comm. v. Rowson, 5 N.C. App. 629, 169 S.E. 2d 132 (1969); Freedle v. Moorefield, 17 N.C. App. 331, 194 S.E. 2d 156 (1973).

The agreement dictated to the court on 5 September 1978 did not constitute a consent judgment. Neither party nor the judge signed the memorandum. There was no consent by the defendant to the entry of judgment by the judge in January 1979, and the judge had no authority to enter the same. If the writing entered by the court on that date is a contract between the parties, it must be litigated in another suit on another date.

The judgment is revoked and the case is remanded to the district court of Orange County for trial.

Judgment vacated and cause remanded.

Judges VAUGHN and ERWIN concur.

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HILL, Judge.

The judgment entered in this cause filed on 29 January 1979 must be revoked. Ordinarily, where a judgment is rendered in open court and some memorandum or minute of the note appears of record showing what the judgment is, formal judgment based thereon may be later entered. This rule does not apply to a con *530 sent judgment, which requires the consent of the parties to subsist at the time it is signed in order to give the court jurisdiction. A consent judgment is not, strictly speaking, a judgment of the court, but is merely the contract of the parties entered upon the records of a court of competent jurisdiction with its approval and sanction, and such contract cannot be modified or set aside without the consent of the parties thereto. Lee v. Rhodes, 227 N.C. 240, 41 S.E. 2d 747 (1947); Highway Comm. v. Rowson, 5 N.C. App. 629, 169 S.E. 2d 132 (1969); Freedle v. Moorefield, 17 N.C. App. 331, 194 S.E. 2d 156 (1973).

The agreement dictated to the court on 5 September 1978 did not constitute a consent judgment. Neither party nor the judge signed the memorandum. There was no consent by the defendant to the entry of judgment by the judge in January 1979, and the judge had no authority to enter the same. If the writing entered by the court on that date is a contract between the parties, it must be litigated in another suit on another date.

The judgment is revoked and the case is remanded to the district court of Orange County for trial.

Judgment vacated and cause remanded.

Judges VAUGHN and ERWIN concur.

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Bluebook (online)

259 S.E.2d 402, 43 N.C. App. 528, 1979 N.C. App. LEXIS 3110, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lalanne-v-lalanne-ncctapp-1979.

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