Murphy v. Merritt, 63 N.C. 502 (1869)

June 1869 · Supreme Court of North Carolina

63 N.C. 502

JAMES MURPHY v. ALEXANDER H. MERRITT.

A regular final judgment can not be set aside at a subsequent term on motion, even although it was entered under a misapprehension-of counsel.

An appeal from an order to vacate a judgment, leaves such judgment, and any execution issued under it, in full force.

Motion to set .aside a judgment, heard by Russdl, J., at Spring Term 1869 of the Superior Court of Sampson.

The defendant’s counsel moved-to, set..aside a judgment rendered in an action of irouer,.at Pall Term .1867 .-in favor of the -plaintiff. The judgment had been entered by ¡consent of-the •defendant’s .counsel. It appeared ,tp the-Court -that .one Mer-iritt.had represented to the defendant’s counsel that the defen-dant would be satisfiedwith this arrangement, provided the •costs did not exceed twenty-five dollars; and that, acting upon dhis .statement, the counsel consented -to the judgment. It appeared further that the costs exceeded twenty-five dollars, and that the defendant had never authorized Merritt to instruct his counsel to consent to the judgment.

The Court ordered the judgment in this case to be vacated, and the case to be reinstated on the docket. From this order the plaintiff appealed.

<'Strange, for appellant.

No counsel contra.

Reade, J.

It is settled that a regular final judgment can mot be set aside at a subsequent term on motion. , The judgment in this case was regular, and had the additional force of being by consent of parties. The fact that the defendant’s counsel consented under the false representation of a third person that his client was willing to pay it, makes no difference.

The effect of the appeal from the order vacating the judgment, was to leave the judgment and execution in full force; and the money raised under the execution will be paid over to the plaintiff. There was error. Judgment here for the plaintiff for costs.

Per Curiam. Judgment accordingly.