{ "id": 8548863, "name": "SHERMAN SHORE v. PATRICIA PATTERSON SHORE", "name_abbreviation": "Shore v. Shore", "decision_date": "1970-02-04", "docket_number": "No. 7021DC60", "first_page": "197", "last_page": "201", "citations": [ { "type": "official", "cite": "7 N.C. App. 197" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "129 S.E. 2d 593", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "259 N.C. 31", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559135 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/259/0031-01" ] }, { "cite": "41 S.E. 2d 747", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "748" } ], "opinion_index": 0 }, { "cite": "227 N.C. 240", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8623252 ], "weight": 2, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc/227/0240-01" ] }, { "cite": "3 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "217 N.C. 378", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8608265 ], "opinion_index": 0, "case_paths": [ "/nc/217/0378-01" ] }, { "cite": "35 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "225 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615514 ], "opinion_index": 0, "case_paths": [ "/nc/225/0639-01" ] }, { "cite": "169 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 629", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552695 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0629-01" ] }, { "cite": "29 S.E. 2d 740", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "224 N.C. 211", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8597672 ], "opinion_index": 0, "case_paths": [ "/nc/224/0211-01" ] } ], "analysis": { "cardinality": 442, "char_count": 11005, "ocr_confidence": 0.577, "pagerank": { "raw": 2.208705353199233e-07, "percentile": 0.776101425218227 }, "sha256": "9e9c69cfbc02461b624ae8f481f2817b6b4116a609395ea37f53deef5b4e4b2d", "simhash": "1:34a5bbe3d6652447", "word_count": 1858 }, "last_updated": "2023-07-14T21:45:53.911218+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Campbell and Paricer, JJ., concur." ], "parties": [ "SHERMAN SHORE v. PATRICIA PATTERSON SHORE" ], "opinions": [ { "text": "HedricK, J.\nThe District Court is without authority to consolidate two cases \u201cfor the purpose of appeal.\u201d Cases consolidated for trial may be appealed by filing in the Court of Appeals one record. Conley v. Pearce-Young-Angel Co.; Rutherford v. Pearce-Young-Angel Co., 224 N.C. 211, 29 S.E. 2d 740; 1 Strong, N.C. Index 2d, Appeal and Error, \u00a7 41. Rule 14, Rules of Practice in the Court of Appeals of North Carolina, provides that upon proper motion two cases may be consolidated for argument before this Court. In the instant case, the appellant has docketed in this Court a single record on appeal attempting to appeal from the entry of orders in two separate cases. The appellant has failed to bring forward his exception to the order entered in the second case extending the time for the defendant to file an amended answer; therefore, we have before us only those assignments of error relating to the order setting aside the \u201cConsent Judgment\u201d in the first case.\nThe appellant\u2019s first assignment of error is as follows: \u201cMay a party who has personally consented to judgment in open court and accepted a benefit provided in said judgment later withdraw such consent and have the judgment set aside for want of consent?\u201d Our Court was faced with this same question in Highway Comm. v. Rowson, 5 N.C. App. 629, 169 S.E. 2d 132 (1969). In that case an agreement was reached between the parties at the 12 November 1968 session of Washington Superior Court with the parties thereto agreeing that the judgment could be prepared and signed out of term, out of the county and out of the district. On 27 January 1969 Judge Cowper signed a \u201cconsent order\u201d which contained within it the statement that the defendant refused to sign the judgment. The defendant excepted to the entry of the judgment. Parker, J., speaking for the Court, stated:\n\u201cIt is a settled principle of law in this State that a consent judgment is the contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. King v. King, 225 N.C. 639, 35 S.E. 2d 893; Keen v. Parker, 217 N.C. 378, 3 S.E. 2d 209. \u2018Moreover, the power of a court to sign a consent judgment depends upon the unqualified consent of the parties thereto, King v. King, supra, and \u201cthe consent of the parties must still subsist at the time the court is called upon to exercise its jurisdiction and sign the consent judgment.\u201d \u2019 Lee v. Rhodes, 227 N.C. 240, 242, 41 S.E. 2d 747, 748.\u201d\nIn the instant case, there is nothing in the record to indicate that the defendant or her attorney of record had any knowledge that the \u201cConsent Judgment\u201d had been tendered to and signed by Judge Clifford. There is nothing in the record to indicate that the defendant or her attorney of record was afforded an opportunity to either consent to the judgment or repudiate the agreement allegedly earlier entered into by the parties. The judgment is void on its face for lack of consent. Lee v. Rhodes, 227 N.C. 240, 41 S.E. 2d 747; Highway Comm. v. Rowson, supra.\nThe appellant contends in his second assignment of error that one district court judge may not set aside the judgment of another district court judge. Upon learning of the entry of the \u201cConsent Judgment\u201d, the defendant made a motion in the cause that the same be set aside. \u201cWhen a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause. And when the question is raised, the court, upon motion, will determine the question. The findings of fact made by the trial judge in making such determination, where there is some supporting evidence, are final and binding on this Court. Ledford v. Ledford, supra.\u201d (Emphasis added) Overton v. Overton, 259 N.C. 31, 129 S.E. 2d 593 (1963).\nThe order of District Judge Alexander dated 6 October 1969 setting aside the \u201cConsent Judgment\u201d of District Judge Clifford dated 15 September 1969 is affirmed.\nAffirmed.\nCampbell and Paricer, JJ., concur.", "type": "majority", "author": "HedricK, J." } ], "attorneys": [ "Ralph E. Goodale, for plaintiff appellant.", "James J. Booker and Randolph and Randolph, by Clyde C. Randolph, Jr., for defendant appellee." ], "corrections": "", "head_matter": "SHERMAN SHORE v. PATRICIA PATTERSON SHORE\nNo. 7021DC60\n(Filed 4 February 1970)\n1. Appeal and Error \u00a7\u00a7 16, 41\u2014 consolidation of cases for purpose of appeal \u2014 authority of district court\nThe district court is without authority to consolidate two cases for the purpose of an appeal.\n2. Appeal and Error \u00a7 41\u2014 cases consolidated for trial \u2014 record on appeal\nCases consolidated for trial may be appealed by filing in the Court of Appeals one record.\n3. Appeal and Error \u00a7 45\u2014 abandonment of exceptions\nWhere appellant docketed in the Court of Appeals a single record on appeal attempting to appeal from the entry of orders in two separate cases, but appellant failed to bring forward his exception to the order entered in the second ease, the Court of Appeals has before it only those assignments of error relating to the order entered in the first case.\n4. Judgments \u00a7 9\u2014 consent judgment \u2014 lack of defendant\u2019s consent\nPurported consent judgment signed by the presiding judge is void for lack of defendant\u2019s consent where there is nothing in the record to indicate that defendant or her attorney knew that the consent judgment had been tendered to and signed by the judge, and there is nothing in the record to indicate that defendant or her attorney was afforded an opportunity either to consent to the judgment or repudiate the agreement allegedly entered into earlier by the parties.\n5. Judgments \u00a7 21; Courts \u00a7 9\u2014 setting aside consent judgment \u2014 motion in the cause \u2014 power to set aside judgment entered by another judge\nDistrict court judge had power to set aside a purported consent judgment entered by another district court judge upon defendant\u2019s motion in the cause to set aside the judgment on the ground that defendant and her attorney had not consented thereto.\nAppeal by plaintiff from Alexander, District Judge, 8 October 1969, in chambers, FoRsyth District Court.\nThe record on appeal docketed in this Court discloses that on 30 August 1968 the plaintiff, husband, filed in the District Court of Forsyth County, North Carolina, an action for absolute divorce on the ground of adultery, and that the defendant, wife, filed an answer denying the allegations of the complaint, and pleaded a cross-action for alimony without divorce, custody and support for the minor child, possession of the dwelling house, and counsel fees. On 29 May 1969 District Judge Clifford entered an order providing for custody and support of the minor child, and subsistence for the defendant pending the final determination of the cause.\nOn 20 August 1969 plaintiff filed in the District Court of For-syth County another action against his wife for an absolute divorce on the ground of one-year separation, and on 5 September 1969 the defendant filed an answer to the second action denying the allegations of the complaint and pleaded a cross-action for alimony without divorce, custody and support for the minor child, possession of the dwelling house, and counsel fees.\nOn 16 September 1969 District Judge Clifford signed, nunc pro tunc, a paper writing purporting to be a \u201cConsent Judgment\u201d in the action filed 30 August 1968. The \u201cConsent Judgment\u201d in part reads as follows:\n\u201cThis cause coming on for trial at the July 14, 1969 Civil Session of Forsyth District Court presiding [sic] over by The Honorable John C. Clifford, Judge of the 21st Judicial District Court, both Plaintiff and Defendant having presented evidence and the issues having been submitted to the jury, counsel for the Defendant requested a conference in chambers to attempt to reach a consent settlement between the parties; the Court being present during the negotiations of the attorneys and the attorneys conferring several times privately with their respective clients; it appearing to the Court that a reasonable settlement agreement has been re\u00e1ched by consent of the parties in open Court:\n\u201cIT IS NOW, THEREFORE, BY CONSENT THE JUDGMENT OF THE COURT:\n* *\n\u201c(7) One juror is withdrawn and a mistrial declared and the Plaintiff\u2019s action for divorce on the grounds of adultery is dismissed, and the defendant\u2019s cross-action is also dismissed.\n\u201c(8) That due to unexplained delays of counsel, formal judgment in this cause has not been entered; this Judgment nunc pro tunc is entered this 15 day of September, 1969.\n\u201cs/ J. C. CLIFFORD Judge Presiding\u201d\nThe \u201cConsent Judgment\u201d was signed by the plaintiff and his attorney, Ralph E. Goodale, but was not signed by either the defendant or her attorney.\nOn 19 September 1969 the defendant moved before District Judge Alexander that the \u201cConsent Judgment\u201d entered by Judge Clifford be set aside as being null and void because the defendant and her attorney had not consented thereto. The plaintiff replied to the motion on 24 September 1969, and on 6 October 1969 District Judge Alexander entered an order setting aside the \u201cConsent Judgment\u201d as follows:\n\u201cTHIS CAUSE coming on to be heard before the undersigned Judge of the Forsyth County District Court and being heard upon the defendant\u2019s motion to set aside \u2018CONSENT JUDGMENT\u2019 entered in the above action on September 15, 1969;\n\u201cAnd it appearing to the Court that the purported \u2018CONSENT JUDGMENT\u2019 was never consented to by either defendant or her attorney of record;\n\u201cAnd the Court being of the opinion that the aforesaid \u2018CONSENT JUDGMENT\u2019 is void for a lack of defendant\u2019s consent and should be set aside;\n\u201cIt further appearing that the above action is pending trial in the District Court of Forsyth County, North Carolina; that temporary order for alimony and child support pendente lite entered in this cause on May 29, 1969, by The Honorable J. C. Clifford, Judge Presiding, is and remains in full force and effect; \u201cNOW, THEREFORE, it is ORDERED that the purported \u2018CONSENT JUDGMENT\u2019 be, and the same hereby is, set aside.\n\u201cIt is further ORDERED that the Order of the Honorable J. C. Clifford, entered May 29, 1969, with regard to temporary alimony and child support is continued in full force and effect pending further order of this Court.\n\u201cThis the 6th day of October, 1969.\n\u201cs/ ABNER ALEXANDER Judge Presiding\u201d\nOn 17 September 1969 the plaintiff filed a \u201cPlea in Bar\u201d pleading the \u201cConsent Judgment\u201d in bar of the defendant\u2019s cross-action set up in the answer of the defendant to the second action. On 6 October 1969 District Judge Alexander entered an order sustaining plaintiff\u2019s \u201cPlea in Bar\u201d and extending the time for the defendant to file an amended answer in the second action.\nThe plaintiff excepted to the order of Judge Alexander dated 6 October 1969 setting aside the \u201cConsent Judgment\u201d, and also excepted to Judge Alexander\u2019s order dated 6 October 1969 extending the time for the defendant to file an amended answer in the second action, and gave notice of appeal to this Court.\nOn 8 October 1969 Judge Alexander entered an order purporting to consolidate the two cases \u201cfor the purpose of appeal\u201d.\nRalph E. Goodale, for plaintiff appellant.\nJames J. Booker and Randolph and Randolph, by Clyde C. Randolph, Jr., for defendant appellee." }, "file_name": "0197-01", "first_page_order": 219, "last_page_order": 223 }