LaLonde v. Hubbard, 202 N.C. 771 (1932)

June 15, 1932 · Supreme Court of North Carolina

202 N.C. 771

MABEL LaLONDE v. SAMUEL A. HUBBARD and SALLIE B. HUBBARD.

(Filed 15 June, 1932.)

1. Judgments K f — Consent judgment may not be collaterally attacked.

A consent judgment may not be collaterally attacked, the remedy in such case being by independent action to set the judgment aside, and where the judgment is collaterally attacked in an action involving the , same cause of action covered by the consent judgment it is not error for the court to refuse to consider evidence tending to impeach the consent judgment.

3. Judgments O c — Consent judgment is binding on parties until set aside by consent or by judgment in independent action.

A consent judgment is binding on the parties thereto until modified or set aside by consent, or until vacated for fraud or mistake by judgment in an independent action.

3. Judgments h b — Consent judgment is a bar to subsequent action involving the same matters.

A consent judgment purporting to settle all matters in controversy in an action involving liability for damages sustained in a collision of two automobiles in wbicb the defendant sets up a cross-action upon allegations of negligence on the part of the plaintiff, .is a bar to an action by the defendant in the prior action against the plaintiff therein to recover for the identical negligence alleged in the cross-action.

4. Judgments C b — Fact that one of several attorneys of record of part}' did not sign consent judgment does not affect its validity.

"Where the attorneys of record of both parties sign a consent judgment, and the defendant therein is advised that the consent judgment would be entered and does not make known to the court in person or by counsel any objection thereto, the fact that one of the defendant’s attorneys of record did not sign the judgment does not affect its validity. .

Appeal by plaintiff from Sinlc, J., at March Term, 1932, of Burr-combe.

Affirmed.

This is an action to recover damages resulting from injuries caused by a collision on 23 March, 1930, at the intersection of two streets in the city of Asheville, N. 0., between an automobile owned and driven by the plaintiff, and an. automobile owned by the defendant, Sallie B. Hubbard, and, with her consent, driven by her minor daughter. The "action was begun in the Superior Court of Buncombe County, on 27 October, 1927.

It is alleged in the complaint that the collision between the two- automobiles was caused by the negligence of the driver of the automobile owned by the defendant, Sallie B. Hubbard. This allegation is denied in the answer of the defendants, who allege in their further answer, that the collision was caused by the negligence of the plaintiff, and that for this reason plaintiff is not entitled to recover in this action.

In addition to other defenses set up in their answer, the defendants plead in bar of plaintiff’s recovery in this action a judgment by consent, entered in an action brought by the defendant herein, Sallie B. Hubbard, as plaintiff, against the plaintiff herein, as defendant, in the General County Court of Buncombe County, to recover damages resulting from injuries caused by the same collision as that out of which the cause of action alleged in the complaint in this action arose. The plaintiff herein, as defendant in that action, denied the allegations of negligence in the complaint therein, and in her answer set up a counterclaim founded upon the identical facts alleged in her complaint in this action as the cause of action on which she demands judgment against the defendants.

When tbis action was called for trial, it was agreed by tbe parties tbat tbe judge,- without tbe intervention of a jury, and before tbe trial of tbe action on its merits, should bear tbe evidence pertinent to defendant’s plea in bar, and determine tbe validity of said plea.

Pursuant to said agreement, tbe defendants offered in evidence tbe complaint, answer and judgment in tbe action entitled “Sallie B. Hubbard v. Mabel.LaLonde,” brought by tbe plaintiff in said action in tbe General County Court of Buncombe County. Both tbe complaint and tbe answer in said action were signed by attorneys for plaintiff and defendant, respectively, and were duly verified by tbe parties to tbe action. Tbe judgment on its face purports to have been entered by ■ consent, and is as follows:

JUDGMENT.

“State of North Carolina — County of Buncombe.

In tbe General County Court.

Sallie B. Hubbard, plaintiff, v. Mabel LaLonde, defendant.

Tbis cause coming on to be beard, and being beard before bis Honor, Guy "Weaver, judge presiding over tbe General County Court, on 30 September, A.D. 1930, and it appearing to tbe court, tbat tbe defendant, Mabel LaLonde, has taken a voluntary nonsuit as to her counterclaim in tbis cause, and tbat all matters in controversy between tbe parties have been settled and adjusted:

It is therefore ordered and adjudged by consent of E. E. Williams, attorney for plaintiff, and Lee & Lee, attorneys for defendant, tbat tbe plaintiff take nothing by her action, and tbat tbe defendant pay tbe costs to be taxed by tbe clerk. Guv Weavbb, Judge Presiding.'

We consent: E. E. Williams and Lee & Lee.”

Tbe complaint in said action was signed by E. E. Williams, attorney, and was duly verified by tbe plaintiff therein, Sallie B. Hubbard. Tbe answer was signed by Lee & Lee, and Alfred S. Bernard, attorneys, and was duly verified by tbe defendant therein, Mabel LaLonde. Tbe judgment does not show tbat Alfred S. Barnard, one of tbe attorneys who signed tbe answer, consented thereto. Tbe pleadings in tbe action in tbe General County Court show tbat tbe causé of action alleged in tbe complaint, and tbe counterclaim alleged in tbe answer, are founded upon tbe identical facts alleged in tbe pleadings in tbis action.

Tbe plaintiff in tbis action offered evidence tending to show tbat Lee & Lee, who consented to tbe judgment entered in tbe action in tbe General County Court, as ber attorneys, were not employed by ber to defend said action, but were employed for that purpose by an insurance company, wbicb bad issued to plaintiff as the owner of tbe automobile involved in tbe collision, a policy of liability insurance; that said attorneys were employed by tbe insurance company to defend tbe action in behalf of plaintiff, tbe defendant in that action, pursuant to tbe provisions of its policy of insurance; that tbe plaintiff did not agree or consent to any settlement of any right or cause of action which she bad against tbe plaintiff in said action, who is tbe defendant in this action; and that R. R. Williams, attorney for tbe defendant in this action, and Lee & Lee, attorneys for tbe insurance company in tbe action in tbe General County Court, knew when they caused tbe judgment to be entered in said action that plaintiff bad not consented to said judgment.

Tbe judge was of opinion that tbe evidence offered by tbe plaintiff to impeach tbe judgment by consent entered in tbe General County Court was incompetent, and for that reason declined to consider tbe said evidence. Upon bis intimation that be would bold that tbe judgment of tbe General County Court, was a bar to plaintiff’s recovery in this action, plaintiff submitted to a voluntary nonsuit, and appealed to tbe Supreme Court.

Alfred 8. Barnard for plaintiff.

JR. JR'. Williams for defendant.

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 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.