Cox v. Cox, 53 N.C. 487, 8 Jones 487 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 487, 8 Jones 487

ESTHER COX v. JOHN COX.

Á. court cannot strike out an entry of a compromise in a suit and order it for trial because it has been imperfectly entered, or because it has not been performed. The proper way is to amend, nunc pro tunc, so as to make the record speak the truth, and then to enforce the performance of the compromise by attachment or other mean's, usual in such cases.

This is an appeal from an interlocutory order of the Superior Court of Davidson, made by Saunders, J., in a suit pending in that Court, for a divorce.

The parties, in the case, having compromised on certain terms, an entry was made on the docket, in these words, to wit, “ Compromised and dismissed at cost of the defendant, provided the cost is paid.” At the next term thereafter, it appeared that the cost was not paid, and the plaintiff’s counsel moved that the entry be stricken out, and that the cause stand for trial on the docket. To sustain this motion, he produced several affidavits, showing that a part of the compromise was, that the plaintiff was be restored to her home, and was to be well treated and provided for by her husband ; he also urged the non-payment of the costs, as one of the grounds, for setting aside the entry.

The defendant filed his own affidavit, not denying the terms of compromise, as alleged by the plaintiff, and insisting that he has been ready and willing to perform it as stated by her, and giving reasons why the plaintiff had not returned homé, and also why the cost had not been paid.

The Superior Court, on' consideration of the motion and the facts disclosed, made the following order: “ It appearing to the satisfaction of the Court, that the entry made by the clerk upon the trial docket, did not contain the full and true terms of the compromise and agreement in said case — that said defendant has not complied with the said compromise and agreement, it is ordered that the case stand for trial at the next term of this Court.”

From which order, the defendant prayed an appeal to the Supreme Court, which was allowed.

Kittrdl and Miller, for the plaintiff.

Gorrell, for the defendant.

Manly, J.

This is an appeal, by leave, from an interlocutory order of the Superior Court for Davidson. Pending a suit between the parties for a divorce, a compromise was agreed upon and partly entered of record, some of the conditions of the compromise being omitted. At the term next after the compromise, evidence was laid before the Court, by affidavit, of the omission above stated, and of the non-performance generally, of the conditions; whereupon the Court ordered what was upon the record to be stricken out, and the case to stand upon the docket for trial.

"We think this order cannot be supported, because of defeet of power in the Court. Compromises pul; a speedy end to contentions and, therefore, commend themselves to the favorable regal'd of the courts. They are entered of record, and may be enforced by rules upon the respective parties, to perform, and by attachments, if need be. The courts cannot unmake any more than they can make them at pleasure; but will see that they are properly entered upon the records, when made, and faithfully carried into execution, if practicable. Without discussing the powers which the court might have over such compromises, in certain states and conditions of •them, it is sufficient to say that neither the imperfect state of the record, nor the neglect of one party to perform, and the consequent dissatisfaction of the other, would furnish the court with an occasion for the exercise of a power to abrogate.

This disposes of the question before us, and shows that there is error in the order appealed . from. The proper course would have been to amend the record as to the terms of the compromise mme pro fame, so as to make it speaik the. truth, and then to compel itá performance by the exercise of such powers as are usual and proper .with the Court to enforce its rules. The powers of amendment are unquestionable, and the powers to enforce are also clear; Freeman v. Morris, Busb. 287 ; Kirldand v. Mangum, 5 Jones, 313.

We take this occasion to reaffirm that we interfere with no discretionary power of the superior court. The order, complained of, does not lie within the Court’s discretion, but is a mistaken exercise of power. .

This opinion should be certified to the Court below, to the end, that the said order may be reVersed and the Court proceed.

Per Curiam

Judgment reversed.