Fowler v. Winders

Olaek, C. J. Tbe plaintiffs appealed upon tbe ground tbat tbe consent order could not be modified by tbe court. This consent order was an interlocutory order in the cause, and has validity because of the approval of the judge, and was subject to modification by the judge like any other interlocutory order, provided it did not infringe upon the rights of the parties, which does not appear. The principle tbat in the absence of fraud and mistake a consent judgment cannot be modified except by consent applies to final judgments; and, also, where a party has acquired rights in the final result which would be jeopardized by a change in the terms of such consent judgment. It has no application where, as in this case, there was an interlocutory judgment for the payment of the rent of a furnished hotel and by reason of the defendant being dispossessed of certain furniture by action of the plaintiffs there has been a material change in the status [108] of the defendant. Both parties being represented, the defendant was permitted to give surety, instead of paying over said rent, until the amount of the deferred rent should aggregate the amount expended in refurnishing the hotel. The final judgment will determine the contention of the parties, and the acceptance of a bond in lieu of payment of the rents was an interlocutory matter which rested in'the discretion of the judge ppon the facts found by him as to the change in the status caused by the action of one of the plaintiffs in depriving the defendant of the furniture in the hotel pending the litigation. Affirmed.