Ex Parte Johnson , 277 N.C. 688 ( 1971 )

178 S.E.2d 470 (1971) 277 N.C. 688

Ex parte B. D. JOHNSON et al.

No. 49.

Supreme Court of North Carolina.

January 20, 1971.

W. A. Johnson, Lillington, Wells, Blossom & Burrows, Wallace, and Venters & Dotson, Jacksonville, for W. Victor Venters and wife, Katherine C. Venters, Mae J. Sorrell, Cora Jane J. Bostic and husband, Raeford Bostic, Carson Johnson, Fletcher Johnson, and Dorothy J. Lane and husband, Lester Lane, appellees.

Wheatly & Mason, Beaufort, and William F. Simpson, Pink Hill, for Bruce Carlton, Executor of Ophelia J. Carlton, Bruce Carlton, individually, Nash Johnson, Mary Sue Johnson, William T. Blanchard and Margaret B. Cooper, appellants.

MOORE, Justice.

Virginia Johnson Scarborough was a party to the original petition and was a party and ordered to appear at the hearing on 22 April 1964. She made no appearance and did not appeal from the 22 April 1964 order entered by the clerk. She was not a party to the Agreement of 5 August 1964 or the consent order entered by Judge Stevens on 7 October 1964. She did join in as a movant in the motion of 25 January 1968, but withdrew and is not now a party to this appeal.

Only the decision of the Court of Appeals is before us for review. Our inquiry is restricted to rulings of the Court of Appeals which are assigned as error and which are preserved by arguments or by the citation of authorities with reference thereto in the brief filed by the appellants in this Court. In their brief the appellants state that the questions involved in this appeal are:

"1. Was the Court of Appeals correct in finding that the Clerk had jurisdiction over the parties, lands and timber encompassed in his order of 22 April 1964?

"2. Was the Court of Appeals correct in setting forth that the movants had failed in showing that certain lands before the Clerk were not involved in the 1948 petition because the Court of Appeals was `unable to determine this from the record'?

"3. Was the Court of Appeals correct in asserting that where the judgment is void as to Virginia Johnson Scarborough, it is effective as against the other tenants in common?

"4. Was Judge Cowper in error in the entry of his order?"

No argument was advanced and no citation of authority was made in connection with question No. 3. This is deemed abandoned and is not before us. State v. Williams, 274 N.C. 328, 163 S.E.2d 353.

The real question involved is: Was Judge Cowper in error in declaring the order entered by the clerk on 22 April 1964 null and void? The Court of Appeals answered this question in the affirmative. We agree.

On 7 February 1964 all the parties in interest (except Virginia Johnson Scarborough) requested the clerk to hold a hearing and enter such order as appropriate for carrying out the judgment entered by the court on 13 November 1950 confirming the report of the commissioners in ex parte proceeding #2282. In compliance with this motion the clerk entered his order of 22 April 1964. All the parties appealed from this order, but on 5 August 1964 while the appeal was pending all the parties entered into an Agreement to divide certain lands involved in S.P. #2282, as well as other lands owned by the parties, and further agreed that by proper order their appeal from the clerk's order of 22 April 1964 would be withdrawn.

On 7 October 1964 Judge Stevens, with the consent of the attorneys for all the parties (except Virginia Johnson Scarborough) entered the following order:

"This cause coming on to be heard and the same being heard before his Honor, Henry L. Stevens, Jr., Judge presiding at the October, 1964, term of Civil Superior Court of Duplin County; and it appearing to the Court that the above matter has been duly calendared for trial; and it further appearing to the Court from inspection of the records that on April 22, 1964, His Honor, R. V. Wells, Clerk of Superior Court of Duplin County, entered an order in the above entitled cause, making certain findings of fact and conclusions of law and it further appearing to the Court that the movants excepted to the findings of fact, conclusions of law and to the order entered in this cause and appealed from said order, and that Virginia Johnson Scarborough did not appeal;

"And it further appearing to the Court that the attorneys for the movants in the above entitled cause now move the Court that the appeal from the order and conclusions of law and findings of fact in this cause be dismissed and that this matter be remanded to the Clerk of Superior Court of Duplin County for further proceedings in conformance with said order;

"IT IS NOW, THEREFORE, CONSIDERED, ORDERED AND ADJUDGED that the appeal filed in this cause by the movants be and the same is hereby dismissed and IT IS FURTHER ORDERED that this cause be remanded to the Clerk of Superior Court of Duplin County for further proceedings in conformance with the order entered on April 22, 1964, by the Clerk of Superior Court of Duplin County."

The Agreement entered into by the parties on 5 August 1964 also provided, among other things, that Nash Johnson should have a right of election to take either the Newkirk or Norman Johnson tract as set out in the Agreement, and on 10 August 1964 Nash Johnson, through his attorney H. E. Phillips, filed with the clerk notice of his election to take the Newkirk tract. Nash Johnson having first consented to and then having ratified the Agreement of 5 August 1964 by making the election provided for in the Agreement cannot now attack that Agreement. Neither he nor his co-movants, all of whom consented through their attorneys to the judgment signed by Judge Stevens withdrawing their appeal from the clerk's entry of the order of 22 April 1964, can attack that order by motion in the cause some four years later. A judgment entered by the consent of the parties cannot be changed or altered without the consent of the parties to it or set aside except on proper allegations and proof and a finding by the court that it was obtained by fraud or a mutual mistake or that consent in fact was not given, the burden being on the party attacking the judgment. Owens v. Voncannon, 251 N.C. 351, 111 S.E.2d 700; Armstrong v. Aetna Insurance Co., 249 N.C. 352, 106 S.E.2d 515; Boucher v. Union Trust Co., 211 N.C. 377, 190 S.E. 226; 5 Strong's N.C. Index 2d, Judgments § 21. 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. Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593; Brown v. Owens, 251 N.C. 348, 111 S.E.2d 705; 5 Strong's N.C. Index 2d, ibid. A consent judgment signed by the attorneys for the parties is presumed to be valid and the burden of proof is upon the one who challenges its invalidity. Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897; Southern Chemical Co. v. Bass, 175 N.C. 426, 95 S.E. 766; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Gardiner v. May, 172 N.C. 192, 89 S.E. 955; 1 Strong's N.C. Index 2d, Attorney and Client § 3. In this case, there was no allegation or proof of fraud or mutual mistake. There was no motion in the cause to set the judgment aside, and neither Nash Johnson nor his co-movants alleged or offered proof that the attorneys signed the Agreement or the consent judgment before Judge Stevens without their approval. Under these circumstances, the Agreement and the consent judgment are binding on the parties.

While the order of 22 April 1964 is not a consent order per se, by consenting in the Agreement for Division that the appeal from that order be withdrawn and that the case be remanded to the clerk for such supplementary orders as necessary to effectuate the sales and division contemplated in the 22 April 1964 order, and by consenting to the judgment of Judge Stevens that the cause be remanded for proceedings in conformance with that order (22, April 1964), the parties clearly indicated that they did in fact agree to the terms of the clerk's order of 22 April 1964, and for the purposes of this decision we hold that the order has the same effect as if actually entered by consent of the parties thereto.

Movants contend that under G.S. § 1-401 a written authorization for the attorney to act must be filed with the clerk. This statute only requires written authorization when the attorney signs for a petitioner in the original petition. It does not apply here as the original petition in S.P. #2282 was signed by the parties themselves.

Finally, the movants contend that the clerk lacked jurisdiction in the order of 22 April 1964 due to the fact that certain lands were before the clerk in 1964 which were not included in the 1948 petition. The Court of Appeals correctly held that the burden was on the movants to establish this assertion as a matter of fact. This they failed to do, and as jurisdiction is presumed, the record on its face does not reveal a want of jurisdiction. Jackson v. Bobbitt, 253 N.C. 670, 117 S.E.2d 806.

For the reasons stated, we hold that the Court of Appeals correctly held that Judge Cowper erred in the entry of the order appealed from, and the decision of the Court of Appeals is affirmed.

Affirmed.