Opinion
Filed 16 December, 1959.
1. Judgments 8 — A judgment by consent is the agreement of the parties entered upon the record with the sanction of the court, and the power of the court to sign such judgment depends upon the unqualified consent of the parties thereto at that time.
2. Judgments 25 — Where the agreement of the parties to a consent judgment is signed by the attorneys of record it is presumed valid and is not void upon its face, and the burden is upon the party attacking its validity to prove want of consent and that the attorney signing it for her had no authority to consent thereto in her behalf.
3. Same — A party is bound by a consent judgment asserted to by her duly authorized attorney, but if such party did not assent to the judgment and did not authorize the attorney either directly or through her agent to assent to the judgment in her behalf, the consent judgment is void as to her and the is entitled to have it set aside without showing a meritorious defense.
4. Judgment 22 — If a consent judgment is set aside as to one of the defendant as being void as to her for want of authority of the attorney representing the other defendants to represent movant and file answer and consent to the judgment in her behalf, whether the court should permit such party to file answer after the expiration of the time prescribed is addressed to the discretion of the court, and it may properly consider whether such party's failure to file answer may be properly attributed its excusable neglect and whether she has a meritorious defense.
5. Appeal and Error 49 — Where the findings of fact by the court are insufficient to support its order, or it is apparent that the facts were found under misapprehension of the pertinent principles of law, the cause must be remanded for further proceedings.
APPEAL by defendant Alma S. Brown from Thompson, Special J., May Term, 1959, of RANDOLPH, docketed in this Court as No. 524.
Miller Beck for plaintiffs, appellees.
Don Davis and Ottway Burton for defendant Alma S. Brown, appellant.
PARKER, J., concurring.
RODMAN, J., dissenting.
This appeal is from a judgment denying appellant's motion of May 19, 1959, in which the prayed (1) that a judgment entered herein on November 25, 1957, be vacated, (2) that proceedings under an execution issued January 15, 1959, to enforce payment of said, judgment by the sale of her property, be stayed, (3) that the court order the clerk to accept and file an answer tendered in her behalf on March 10, 1959, and (4) that the cause be placed on the civil issue docket for trial.
An appeal from a judgment entered in the independent action entitled "Alma S. Brown, Plaintiff, v. R. G. Owens and A. G. Maness, Defendants," is docketed in this Court as No. 525; and the two appeals were argued together in this Court.
Plaintiffs instituted this action May 4, 1957, to recover on a $2,000.00 promissory note dated October 15, 1956, payable to their order "six months or 180 days after date," allegedly executed by defendants Lonnie Voncannon and Doris Voncannon, as makers, and by defendants Leonard Voncannon and Alma S. Brown, as endorser.
The summons and complaint were duly served on the defendants, including defendant Alma S. Brown, on May 4, 1957.
On June 3, 1957, the clerk granted the defendants (additional) twenty days in which to answer, demur or otherwise plead.
An answer, signed by Sam W. Miller, "Attorney for Defendants," and verified by defendant Lonnie Voncannon on June 24, 1957, purporting to be in behalf of all defendants, was filed. It was admitted therein "that the defendants Lonnie Voncannon and wife, Doris Voncannon, executed and delivered a promissory note to the plaintiffs." With reference to plaintiffs' specific allegation that the $2,000.00 promissory note was endorsed by defendants Leonard Voncannon and Alma S. Brown, the answer was in these words: "3. The defendants, not having full knowledge that the allegations of paragraph 3 are as alleged, therefore deny the same." Except as stated, there was a general denial of all essential allegations of the complaint.
On November 25, 1957, when the cause came on for trial before F. Donald Phillips, Judge presiding, judgment was entered "that the plaintiffs have and recover of the defendants, jointly and severally, the sum of Two Thousand Dollars," with interest and costs. The judgment recites: ". . . and it appearing to the Court that the defendants do not resist judgment in the matter, and, through counsel, agree that judgment may be entered as prayed for in the complaint." Sam W. Miller, "Attorney for Defendants," consented in writing to the entry of said judgment.
The factual allegations in appellant's verified motion of May 19, 1959, are in substance, set forth in the following numbered paragraph.
1. Execution to enforce payment of said judgment was issued January 15, 1959. Appellant owns real and personal property subject to sale under execution and the Sheriff of Randolph County has taken steps to sell her property.
2. Appellant instituted an independent action against plaintiffs herein to enjoin proceedings under said execution; but at April Civil Term, 1959, a demurrer to her complaint therein was sustained, and the temporary restraining order was dissolved. She appealed from the judgment entered in said independent action.
3. She did not retain Sam W. Miller, Attorney at Law, of Asheboro, North Carolina, to represent her. She has never consented that a judgment be taken against her.
4. On March 10, 1959, Don Davis, her attorney, tendered an answer in her behalf to the Clerk of the Superior Court of Randolph County for filing; but said clerk, because said judgment had been entered, refused to accept for filing said tendered answer. A copy of the verified answer so tendered is attached to her motion.
She averred that no valid judgment had been rendered against her.
The judgment denying appellant's said motion of May 19, 1959, is based on the findings of fact set forth there, in, viz.:
"(a) This action was commenced upon the issuance of a summons which was served upon this moving defendant on May 4, 1957.
"(b) An answer was filed on her behalf by her counsel of record and she left the matter of defense up to her son-in-law Lonnie Voncannon, one of the defendants herein;
"(c) A judgment in said cause was duly entered, on November 25, 1957, by his Honor F. Donald Phillips, Judge Presiding, and consented to by the defendant's attorney of record;
"(d) More than one year has elapsed from the entry of said judgment to the date of the notice and motion now before the Court;
"(e) The moving defendant has not established the existence of mistake, inadvertence, surprise or excusable neglect;
"(f) No meritorious defense to said cause exists in favor of the defendant."
Appellant excepted to findings of fact (b). (c). (e) and (f). and excepted to the judgment, and appealed.
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 filed by Mr. Miller in her behalf. If, under these circumstances, she 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 has 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 court 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 valid on its face. Indeed, it is presumed to be valid; and the burden of proof is on the party who challenges its invalidity. Gardner 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 such 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 of 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 motion 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.