Lee v. . Rhodes

41 S.E.2d 747, 227 N.C. 240, 1947 N.C. LEXIS 388

• Court: Supreme Court of North Carolina
• Decided: March 19, 1947
• Status: Published

Opinion

Denny, J.

The conduct of the plaintiff, if considered in its most favorable light, does not appeal to the conscience of the Court. Even so, the record presents for our consideration and determination a question of law rather than one of ethics.

The appellants are relying upon the decisions of this Court in which it has been held that the requirement that a judgment should be signed by the judge is only directory; and that when a judgment is passed in open court and filed with the papers as a part of the judgment roll, it is a valid judgment, Range Co. v. Carver, 118 N. C., 328, 24 S. E., 352. McDonald v. Howe, 178 N. C., 257, 100 S. E., 427; Brown v. Harding, 170 N. C., 253, 86 S. E., 1010; Bond v. Wool, 113 N. C., 20, 18 S. E., 77; Keener v. Goodson, 89 N. C., 273; Matthews v. Joyce, 85 N. C., 258; Rollins v. Henry, 78 N. C., 342.

Ordinarily when a court renders a judgment and there is some memorandum or minute in the records of the court, which discloses what the judgment was, it will be held sufficient and a formal judgment based thereon may be entered nunc pro tunc at a succeeding term. McDonald v. Howe, supra; Brown v. Harding, supra; Ferrell v. Hales, 119 N. C., 199, 25 S. E., 821; Grantham v. Kennedy, 91 N. C., 148; Logan v. Harris, 90 N. C., 8; Jacobs v. Burgwyn, 63 N. C., 193; Davis v. Shaver, 61 N. C., 18.

The above decisions, however, are not applicable to the facts presented here. There is a distinction between a judgment rendered by a court pursuant to its inherent power to hear and determine a controversy, and a consent judgment.

A consent judgment is not, strictly speaking, a judgment of the court, Lynch v. Loflin., 153 N. C., 270, 69 S. E., 143, 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, except for fraud or mistake, Keen v. Parker, 217 N. C., 378, 3 S. E. (2d), 209. King v. King, 225 N. C., 639, 35 S. E. (2d), 889; S. v. Griggs, 223 N. C., 279, 25 S. E. (2d), 862. 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,” Williamson v. Williamson, 224 N. C., 474, 31 S. E. (2d), 367. Rodriguez v. Rodriguez, 224 N. C., 275, 29 S. E. (2d), 901; Edmundson v. Edmundson, 222 N. C., 181, 22 S. E. (2d), 576; Gardiner v. May, 172 N. C., 192, 89 S. E., 955.

As contended by the appellants, the plaintiff may have acted in bad faith in withdrawing his consent to the settlement of this case. His purpose in so doing may have been to binder and delay the court in tlie administration of justice. If so, the court was not without power to deal with such conduct. But, it 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.

His Honor was correct in refusing to sign the judgment as tendered. The judgment of the court below is

Affirmed.