Lalonde v. . Hubbard

CONNOR, J. In Wearer v. Hampton, 201 N. C., 798, 161 S. E., 480, it is said: “It is settled beyond controversy in this State that a consent judgment is tbe contract of tbe parties spread upon tbe records with tbe approval and sanction of a court of competent jurisdiction, and that such contract cannot be modified or vacated without tbe consent of tbe parties thereto, except for fraud or mistake, and that in order to vacate such judgment, an independent action must be instituted, Board of Education v. Commissioners, 192 N. C., 274, 134 S. E., 852, Morris v. Patterson, 180 N. C., 484, 105 S. E., 25.” In that action a consent judgment relied on by tbe defendants as a bar to plaintiff’s recovery was set up in tbe complaint, and attacked directly, for fraud. Defendant’s demurrer to tbe complaint was overruled by tbe trial judge. On defendant’s appeal to this Court, it was held that tbe demurrer was properly overruled. In this action tbe consent judgment relied on by defendant as a bar to plaintiff’s recovery on tbe cause of action alleged in ber complaint, was not set up in tbe *775 complaint for purposes of attack. No attack was made by plaintiff on tbe consent judgment by a reply to tbe new matter contained in tbe answer. At tbe trial, for tbe first time, plaintiff sought to impeach tbe judgment, collaterally. This she could not do. Morris v. Patterson, supra. There was no error in tbe refusal of tbe judge to consider tbe evidence offered by plaintiff at tbe trial of this action for tbe purpose of impeaching tbe consent judgment entered in tbe action in tbe General County Court. Tbe consent judgment is binding on tbe parties to tbe action in which it was entered, until modified or set aside by consent, or until vacated for fraud or mistake by judgment in an independent action. Tbe judgment on its face is a bar to plaintiff’s recovery in this action. It appears from tbe judgment that all matters in controversy between tbe parties to tbe action in tbe General County Court, bad been settled and adjudged by consent. These matters, as shown by the pleadings, are identical with tbe matters involved in this action. Plaintiff’s consent to tbe judgment is shown by tbe action of her attorneys of record, acting in her behalf. Tbe fact that one of her attorneys of record did not sign tbe judgment does not affect its validity, as a consent judgment. Although she was advised that tbe judgment, purporting on its face to be with her consent, would be entered in tbe action, she did not make known to tbe court in person or by counsel any objection to tbe judgment on her part. For this reason Hoel v. White, 169 N. C., 640, 86 S. E., 569, has no application to tbe instant case. There was no error in tbe intimation of tbe judge that be would bold as a matter of law that tbe consent judgment in tbe General County Court is a bar to plaintiff’s recovery in this action. Affirmed.