Robinson v. McAdams

BROCK, Judge. Defendants Charlie McAdams and Jimmy McAdams have filed a motion in this Court to dismiss this appeal as to them. They have been out of this case since it was dismissed as to them on 25 July 1969. This appeal should never have indicated that they are still parties defendant. The appellant was wrong in causing the McAdams defendants to have to file a brief in this appeal, and the cost of printing the brief of Charlie and Jimmy McAdams will be taxed against the appellant, Admin109 istratrix of Blue. The motion of Charlie McAdams and Jimmy McAdams to dismiss this appeal as to them is allowed. It seems quite clear from reading Judge Martin’s Order setting aside the consent judgment that he did so upon three grounds: (1) by allowing plaintiff’s motion to set it aside; (2) by acting ex mero motu in his discretion during the two-week session when a judgment would ordinarily be in fieri; and (3) in his discretion in the interest of justice. It is also quite clear that Judge Martin made no findings of fact to support setting aside the judgment upon any of the three grounds stated. There was absolutely no evidence offered from which the judge could make findings of fact, and if there was evidence within his personal knowledge he failed to state what that evidence was. It is interesting to note that in plaintiff’s motion it is stated that prior to signing the consent judgment a full disclosure of the insurance coverage was made, but plaintiff’s attorneys nevertheless executed the judgment as drawn, but “which upon reflection while the Court is still in session they feel is improper . . .” Clearly the motion does not allege fraud, mutual mistake, or that consent was not in fact given. Obviously plaintiff’s counsel, and the able judge, felt that something had gone awry, but the appellate courts can only make determinations on what appears in the record on appeal. “A judgment entered upon solemn consent of the parties cannot be changed or altered without the consent of the parties to it, or set aside except upon proper allegation and proof, and a finding of the court that it was obtained by fraud or mutual mistake, or that consent was not in fact given, the burden being on the party attacking the judgment.” 5 Strong, N. C. Index 2d, Judgments, § 21, p. 41. The proper procedure to attack a consent judgment on the ground of want of consent at the time it was entered is by motion in the cause. The procedure to set aside a consent judgment for fraud or mutual mistake is by independent action. 5 Strong, N. C. Index 2d, Judgments, § 21, p. 42. There is no evidence or finding by Judge Martin that consent was not in fact given by plaintiff, and such theory is not urged upon us on this appeal. Plaintiff argues on appeal that the consent judgment was obtained by fraud committed sup110 pressio veri. If plaintiff is entitled to have the consent judgment set aside on the grounds of fraud committed suppressio veri or committed suggestio falsi, it will have to be accomplished in an independent action instituted for that purpose. Becker v. Becker, 262 N.C. 685, 138 S.E. 2d 507. Plaintiff also argues that the consent judgment was in fieri during the two-week session and that Judge Martin had the authority, for that reason, to set it aside in his discretion. A consent judgment is an exception to the rule that all judgments are in fieri during the session and that it is in the breast of the judge to abrogate on his own motion or at the suggestion of counsel. Deaver v. Jones, 114 N.C. 649, 19 S.E. 637. So much of the Order entered by Judge Martin on 27 November 1970 as sets aside the consent judgment entered on 23 November 1970 is Reversed. Judges Morris and Hedrick concur.