Owens v. Voncannon

111 S.E.2d 700, 251 N.C. 351, 1959 N.C. LEXIS 603

• Court: Supreme Court of North Carolina
• Decided: December 16, 1959
• Docket: 524
• Status: Published

Opinions

Bobbitt, J.

There is no controversy as to what Sam W. Miller did as appellant’s purported “attorney of record.” Appellant’s motion presented for determination these questions of fact: 1. Did she, directly or through Lonnie Voncannon, authorize Sam W. Miller to file answer in her behalf? 2. If so, did she, directly or through Lonnie Voncannon, authorize Mr. Miller to consent to .the judgment of November 25, 1957? As to burden of proof, see Gardiner v. May, 172 N.C. 192, 89 S.E. 955. In our view, the determinative questions of fact are not sufficiently answered by the court’s findings.

If appellant, directly or through Lonnie Voncannon, authorized Mr. Miller to file the answer of June 24, 1957, the case, as to appellant, was for trial on November 25, 1957, on the issues raised by the answer filedr by Mr. Miller in her behalf. If, under these circumstances, áre did not authorize Mr. Miller, directly or through Lonnie Voncannon, to consent to said judgment of November 25, 1957, ¡the judgment, as to her, is void; and, if void, she was not required, as a prerequisite to having it set ¡aside, to show that she bad a meritorious defense.

“The power of the court to sign a consent judgment depends upon the unqualified consent of the parties thereto; ¡and the judgment is void if such consent does not exist at the time the count sanctions or approves the agreement and promulgates it ¡as a judgment.” King v. King, 225 N.C. 639, 641, 35 S.E. 2d 893. Moreover, when a purported consent judgment is void because the consent is by an attorney who has no authority to consent thereto, the party for whom the attorney purported to act is not required to show a meritorious defense in order ,to vacate such void judgment. Bath v. Norman, 226 N.C. 502, 505, 39 S.E. 2d 363, and cases cited.

True, a judgment bearing the consent of a party’s attorney of record is not void on its face. Indeed, it is presumed to be valid; and the burden of proof is on the party who challenges its invalidity. Gardiner v. May, supra. But if -and when, absent ratification by the party, the court finds as a fact that the attorney had no authority to consent thereto, the essential element upon which its validity depends is destroyed.

“A judgment by consent is the agreement of the parties, their decree, entered upon the record with the sanction of the court. (Citation) It is not a judicial determination of the rights of the parties and does not purport to represent the judgment of the court, but merely records the pre-existing agreement of the parties.” (Our italics) McRary v. McRary, 228 N.C. 714, 719, 47 S.E. 2d 27, and cases cited. Whether plaintiffs were, on November 25, 1957, or are now, entitled to judgment, is beside the .point. The question is whether the judgment of November 25, 1957, is valid as a consent judgment.

If appellant did not, directly or through Lonnie Voncannon, authorize Mr. Miller to file the answer of June 24, 1957, no answer was filed or tendered in her behalf until March 10, 1959. In sueh case, absent her .consent thereto, the judgment of November 25, 1957, as to her, is void; but, under these circumstances, the court, in determining whether in the exercise of its discretion it will permit appellant to file belatedly the answer tendered in her behalf on March 10, 1959, and thereby obviate plaintiffs’ right to judgment by default, will take into consideration whether her failure to file answer within the time prescribed by statute (G.S. 1-89, G.S. 1-125) may be properly attributed to excusable neglect and whether she has a meritorious defense.

Of course, if appellant, directly or through Lonnie Voncannon, authorized Mr. Miller (1) to file answer in her behalf .and (2) to consent to said judgment .of November 25, 1957, appellant’s morion to set aside the judgment of November 25, 1957, should be denied.

Where rulings are made under a misapprehension of the pertinent principles of law, the practice is to vacate .such rulings and remand the cause for further proceedings. Calaway v. Harris, 229 N.C. 117, 47 S.E. 2d 796; Youngblood v. Bright, 243 N.C. 599, 91 S.E. 2d 559, and cases cited.

Because of the insufficiency of the findings of fact and the apparent misapprehension of the pertinent principles of law, the judgment, including all findings of fact set forth therein, is vacated;' and the cause is remanded for hearing de novo on appellant’s said motion in accordance with the legal principles stated herein.

Judgment vacated and cause remanded.