Ledford v. . Ledford

Winborne, J. The first two grounds upon which petitioner bases her motion in the cause to set aside the consent judgment entered in the present proceeding appear to be predicated upon her contention that she had not authorized her attorney to sign such judgment. In this connection, “A judgment entered of record, whether in invitum or by consent, is presumed to be regular, and an attorney who consented to it is presumed to have acted in good faith and to have had the necessary authority from his client, and not to have betrayed his confidence or to have sacrificed his right. The law does not presume that a wrong has been done. It would greatly impair the integrity of judgments and destroy the faith of the public in them if the principles were different,” Walker, J., in Gardiner v. May, 172 N. C., 192, 89 S. E., 955. Moreover, it is a general rule of law that a judgment entered by the court upon the consent of the parties litigant, being in the nature of a contract to which the court has given its formal approval, cannot be subsequently modified or set aside without the assent of the parties, in *376 the absence of fraud or mutual mistake, or actual absence of consent, and then only by an appropriate legal proceeding. See, among other cases, Gardiner v. May, supra; Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209; Rodriguez v. Rodriguez, 224 N. C., 275, 29 S. E. (2d), 901; Williamson v. Williamson, 224 N. C., 474, 31 S. E. (2d), 367; King v. King, 225 N. C., 639, 35 S. E. (2d), 893; Lee v. Rhodes, 227 N. C., 240, 41 S. E. (2d), 747; McRary v. McRary, 228 N. C., 714, 47 S. E. (2d), 27; and for over-all annotation see 139 A. L. R., 421, on subject, “Power to open or modify consent judgment.” 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 of the parties and promulgates it as a judgment. King v. King, supra; Williamson v. Williamson, supra; Rodriguez v. Rodriguez, supra; McRary v. McRary, supra. “When a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause,” King v. King, supra, and cases cited. And when the question is raised as to whether a party to an action consented to a judgment, the court, upon motion, will determine the question. King v. King, supra. The findings of fact made by the trial judge in making such determination, where there is some supporting evidence, are final and binding on this court. See Lumber Co. v. Cottingham. 173 N. C., 323, 92 S. E., 9; Alston v. R. R., 207 N. C., 114, 176 S. E., 292. He is the sole judge of the weight and credibility of the evidence, and his findings thereon are conclusive and are not reviewable by this Court. Creed v. Marshall, 160 N. C., 394, 76 S. E., 270. Applying these principles, the finding of fact by the trial judge that petitioner’s attorney was authorized to sign the consent judgment is conclusive, and is not subject to review on this appeal, if there be evidence to support it. And a careful consideration of the evidence before the trial judge, as shown by the record on this appeal, reveals support for such finding. Next, as to third ground upon which the motion is based: If the consideration upon which petitioner relinquished her dower right, and right to distributive share be inadequate, that alone will not suffice to overthrow the consent judgment. For analogous case see Watkins v. Grier, 224 N. C., 339, 30 S. E. (2d), 223. Careful review of the record in respect to the questions raised, fails to disclose reversible error. Affirmed.