The question here is whether or not the plaintiff consented to the judgment entered pursuant to the compromise agreement reached during the trial of the action in the court below.
The appellant now contends the court below was without jurisdiction to hear and pass upon his motion to set aside the judgment, for the reason that a consent judgment can be attacked only in an independent action.
Justice Winborne, in speaking for the Court, in Keen v. Parker, 217 N. C., 378, 3 S. E. (2d), 209, said: “It is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records with the approval and sanction of a court of competent jurisdiction, and that such contracts cannot be modified or set aside without the consent of the parties thereto, except for fraud or mistake, and that in order to vacate such judgment an independent action must be instituted,” citing numerous authorities. See also State ex rel. Jones v. Griggs, 223 N. C., 279, 25 S. E. (2d), 862.
While it is a settled principle of law in this jurisdiction that a consent judgment cannot be modified or set aside without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action; it is equally well settled that 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 *641cause. Williamson v. Williamson, 224 N. C., 474, 31 S. E. (2d), 367; Rodriguez v. Rodriguez, 224 N. C., 275, 29 S. E. (2d), 901; Gibson v. Gordon, 213 N. C., 666, 197 S. E., 135; Morgan v. Hood, Comr. of Banks, 211 N. C., 91, 198 S. E., 115; Cason v. Shute, 211 N. C., 195, 189 S. E., 115; Deitz v. Bolch, 209 N. C., 202, 183 S. E., 384; Bank v. Penland, 206 N. C., 323, 173 S. E., 345; Bizzell v. Equipment Co., 182 N. C., 98, 108 S. E., 439; Chemical Co. v. Bass, 175 N. C., 426, 95 S. E., 766; Chavis v. Brown, 174 N. C., 122, 93 S. E., 471; Cox v. Boyden, 167 N. C., 320, 83 S. E., 246.
The appellant on the one hand argues that the judgment having been entered by consent, is subject to attack only by an independent action; but does not contend that his consent was obtained by fraud or mutual mistake. While on the other hand, he bases his right to relief squarely on the ground that there was no meeting of the minds of the parties, and therefore that he in reality did not consent to the provisions of the judgment as entered.
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 and promulgates it as a judgment. Williamson v. Williamson, supra; Rodriguez v. Rodriguez, supra. But when the question is raised as to whether or not a party to an action consented to a judgment, the court, upon motion, will determine whether or not such party did consent thereto and a jury trial will not be allowed as a matter of right. Deitz v. Bolch, supra; Chavis v. Brown, supra. And the fact that the plaintiff may have inadvertently overlooked the legal effect of the judgment does not entitle him to the relief he now seeks. Moreover, there is nothing in the pleadings to show that any judgment was sought or anticipated other than one against the administrator of the estate of Mrs. Susan D. King. There is no other party defendant. Therefore, in the absence of express provision in the judgment, directing otherwise, the judgment entered herein must necessarily be paid out of the assets of the estate at the equal expense of the heirs at law of Mrs. King.
The facts found by his Honor as to the plaintiff’s consent, are supported by the evidence, and the judgment below is
Affirmed.