Lentz v. . Lentz

Per Curiam. Plaintiff instituted an action against defendant for “alimony without divorce.” C. S., 1667. At August Term, 1924, judgment for plaintiff was signed by the judge presiding, as follows: “This cause coming on to be heard, and the same having been compromised upon the following terms: “The defendant is to pay'into the office of the clerk of the Superior Court, on or before the first day of each month, for fifteen consecutive years, the sum of $25 per month, for the use and benefit of Eloda P. Lentz and her child, Charles Timothy Lentz, provided that in case of marriage of Eloda P. Lentz said compensation is to terminate. “It is therefore, upon motion of Maness & Sherrin, counsel for the plaintiff, ordered and adjudged by the court that the plaintiff, Eloda P. Lentz, do recover of the defendant, J. W. Lentz, the sum of $4,500, and the cost of this action be taxed against the defendant by the clerk of this court. “It is, by consent of the plaintiff, ordered and adjudged that the defendant shall pay into the office of the clerk of the Superior Court of Cabarrus County the sum of $25 on the first of each month hereafter, until the total amount of the first judgment is extinguished, and it is also adjudged that the said judgment shall not bear interest, except on such amount or amounts that the defendant may default in paying monthly: Provided, however, that in case of remarriage of the plaintiff, then the payment shall at once cease, and the judgment herein rendered shall be *743 marked 'Satisfied’ by the clerk of tbe Superior Court of Cabarrus County; otherwise, to remain in full force and effect.” Below tbe judgment is tbe following: “We hereby consent to and agree to tbe foregoing judgment. Eloda P. Lentz, by Maness & Sherrin, attorneys; John W. Lentz, by Hartsell & Hartsell, attorneys.” At January Term, 1927, tbe court below found tbe following facts: “Floda P. Lentz brought an action against Jobn W. Lentz under section Í667 of tbe Consolidated Statutes for alimony without divorce. A consent judgment was entered, which is filed in this record. Tbe plaintiff Eloda P. Lentz filed an affidavit and an order was issued by tbe clerk of tbe Superior Court to tbe defendant John W. Lentz to show cause why be should not be attached for contempt for failure to pay tbe amount contained in tbe consent judgment. Tbe court finds that tbe defendant complied with tbe judgment by paying twenty-five dollars per month until 7 August, 1926, tbe next payment being due on 1 September, 1926. Tbe court finds that tbe said Eloda P. Lentz obtained an absolute divorce at tbe August Term, 1926, of tbe Superior Court of Cabarrus County, judgment in tbe cause appearing in tbe record. . . . Tbe court further finds that tbe petitioner, Eloda P. Lentz, has not remarried, and that Charles Timothy Lentz, of age six .years, is living, being tbe child, of said marriage.” Tbe judgment of tbe court below, at January Term, 1927, was as follows: “This cause coming on to be beard, and being beard by petition filed by tbe plaintiff, after bearing, tbe court modifies and amends tbe judgment previously made, and orders tbe defendant John W. Lentz to pay to tbe court tbe sum of twelve and 50/100 dollars per month from August, 1926, for tbe use and support of tbe minor child of said marriage, and to pay $25 attorneys’ fee for tbe use of counsel for petitioner.” The court below finds “A consent judgment was entered.” In Ellis v. Ellis, ante, at p. 219, quoting many authorities, this Court held: “A judgment or decree entered by consent is not tbe judgment or decree of tbe court, so much as tbe judgment or decree of tbe parties, entered upon its records with tbe sanction and permission of tbe court, and being tbe judgment of tbe parties, it cannot be set aside or entered without their consent.” Board of Education v. Comrs., 192 N. C., p. 274. No fraud or mistake is alleged. Tbe judgment is a contract, and binding between tbe parties. Plaintiff has not breached tbe condition and married. Tbe divorce obtained by plaintiff does not affect tbe contract. Eor tbe reasons given, tbe judgment of tbe court below is Reversed.