{
  "id": 8525289,
  "name": "ALEXANDER LYNCH, unmarried v. JOSEPHINE LYNCH, unmarried, FLORENE L. LYNCH and husband. KINZIE LYNCH, STELLA L. RICHARDSON, widow, ANNIE L. STALLINGS and husband, JAMES STALLINGS, PERRY M. LYNCH and wife, ZULENE LYNCH, JOHN N. LYNCH and wife, MAGNOLIA LYNCH, VIOLET BATTLE MARSHALL, unmarried, EMMA BATTLE BROWN and husband, FRED BROWN, MATTHEW A. BATTLE, unmarried, ANNIE BATTLE BULLUCK and husband, GARLAND BULLUCK, SAMUEL BATTLE and wife, LAURA BATTLE, JAMES EDWARD MITCHELL, unmarried, JIMMY R. MITCHELL and wife, LILLIAN MITCHELL, JOSEPH LEE MITCHELL and wife, BESSIE MAE MITCHELL, WILLIE L. MITCHELL and wife, MARY MITCHELL, ERNESTINE MITCHELL, unmarried, DOROTHENE M. HUNTER and husband, DAVID HUNTER, ELLAWESE HARRIS WALKER and husband, FREDDIE D. WALKER, WILLIAM E. HARRIS, unmarried, EUZELIA H. JOHNSON and husband, AUTTIE JOHNSON, LONNIE F. HARRIS and wife, RUTH HARRIS, RUTH H. SLADE, unmarried, ESTELLA H. CONNOR, and husband, PETER CONNOR, MARGARET H. SARGENT and husband, ROBERT SARGENT, and FLETCHER HARRIS and wife, MARTHA HARRIS",
  "name_abbreviation": "Lynch v. Lynch",
  "decision_date": "1985-05-07",
  "docket_number": "No. 847SC863",
  "first_page": "540",
  "last_page": "543",
  "citations": [
    {
      "type": "official",
      "cite": "74 N.C. App. 540"
    }
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  "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."
  },
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    {
      "cite": "306 S.E. 2d 553",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1983,
      "opinion_index": 0
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    {
      "cite": "64 N.C. App. 173",
      "category": "reporters:state",
      "reporter": "N.C. App.",
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    {
      "cite": "312 S.E. 2d 241",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1984,
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      "cite": "67 N.C. App. 48",
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    {
      "cite": "111 S.E. 2d 700",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1959,
      "pin_cites": [
        {
          "parenthetical": "citation omitted"
        }
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    {
      "cite": "251 N.C. 351",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8625648
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      "year": 1959,
      "pin_cites": [
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          "parenthetical": "citation omitted"
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    {
      "cite": "49 S.E. 2d 794",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1948,
      "opinion_index": 0
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    {
      "cite": "229 N.C. 373",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        12166095
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      "year": 1948,
      "opinion_index": 0,
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        "/nc/229/0373-01"
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    {
      "cite": "118 S.E. 2d 897",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1961,
      "opinion_index": 0
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    {
      "cite": "254 N.C. 255",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8625781
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      "year": 1961,
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    {
      "cite": "129 S.E. 2d 593",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1963,
      "opinion_index": 0
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    {
      "cite": "259 N.C. 31",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8559135
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      "year": 1963,
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  "analysis": {
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    "char_count": 6509,
    "ocr_confidence": 0.771,
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  "last_updated": "2023-07-14T16:43:43.207286+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Chief Judge Hedrick and Judge Martin concur."
    ],
    "parties": [
      "ALEXANDER LYNCH, unmarried v. JOSEPHINE LYNCH, unmarried, FLORENE L. LYNCH and husband. KINZIE LYNCH, STELLA L. RICHARDSON, widow, ANNIE L. STALLINGS and husband, JAMES STALLINGS, PERRY M. LYNCH and wife, ZULENE LYNCH, JOHN N. LYNCH and wife, MAGNOLIA LYNCH, VIOLET BATTLE MARSHALL, unmarried, EMMA BATTLE BROWN and husband, FRED BROWN, MATTHEW A. BATTLE, unmarried, ANNIE BATTLE BULLUCK and husband, GARLAND BULLUCK, SAMUEL BATTLE and wife, LAURA BATTLE, JAMES EDWARD MITCHELL, unmarried, JIMMY R. MITCHELL and wife, LILLIAN MITCHELL, JOSEPH LEE MITCHELL and wife, BESSIE MAE MITCHELL, WILLIE L. MITCHELL and wife, MARY MITCHELL, ERNESTINE MITCHELL, unmarried, DOROTHENE M. HUNTER and husband, DAVID HUNTER, ELLAWESE HARRIS WALKER and husband, FREDDIE D. WALKER, WILLIAM E. HARRIS, unmarried, EUZELIA H. JOHNSON and husband, AUTTIE JOHNSON, LONNIE F. HARRIS and wife, RUTH HARRIS, RUTH H. SLADE, unmarried, ESTELLA H. CONNOR, and husband, PETER CONNOR, MARGARET H. SARGENT and husband, ROBERT SARGENT, and FLETCHER HARRIS and wife, MARTHA HARRIS"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nAlthough respondents filed their motion pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1), (3) and (6) of the Rules of Civil Procedure, for reasons which we later state, the clerk and trial court should have considered respondents\u2019 motion under the provisions of Rule 60(b)(4) of the Rules of Civil Procedure, which empowers the trial court to set aside void judgments.\nIn their motion to the Clerk, respondents clearly alleged grounds for voiding the Clerk\u2019s order of sale, i.e., that the order, entered by consent, was entered without their authorization and consent.\nThe subject of the validity of consent judgments entered without consent of the parties, or of a party, has been the subject of a number of opinions of our appellate courts. Perhaps the most instructive of these opinions are the opinions of our supreme court in Overton v. Overton, 259 N.C. 31, 129 S.E. 2d 593 (1963) and Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897 (1961), both of which opinions contain helpful reviews of the rules of law applicable in such cases. Those rules, in part, are:\n\u201cThe 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 of the parties and promulgates it as a judgment.\u201d\nOverton v. Overton, supra (quoting Ledford v. Ledford, 229 N.C. 373, 49 S.E. 2d 794 (1948)); Howard v. Boyce, supra.\nWhen 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.\nOverton v. Overton, supra (emphasis added).\n\u201c[A] judgment bearing the consent of a party\u2019s attorney of record is not void on its face. . . . [I]t is presumed to be valid; and the burden of proof is on the party who challenges its invalidity. . . . But if and when . . . the court finds as a fact that the attorney had no authority to consent thereto, the essential element upon which its validity depends is destroyed.\u201d\nHoward v. Boyce, supra (quoting Owens v. Voncannon, 251 N.C. 351, 111 S.E. 2d 700 (1959) (citation omitted) (emphasis added).\nFor recent opinions of this court consistent with Overton and Howard, see Tice v. Dept. of Transportation, 67 N.C. App. 48, 312 S.E. 2d 241 (1984); Briar Metal Products v. Smith, 64 N.C. App. 173, 306 S.E. 2d 553 (1983).\nIn such cases, the party seeking to set a non-consented to judgment aside need not show a meritorious defense. Overton v. Overton, supra and Howard v. Boyce, supra.\nIn Howard, this statement appears relating to the supreme court\u2019s disposition of the appeal:\nThe primary question for the court below was whether or not the attorney of record had authority from appellants to compromise and settle the matters in controversy and approve a judgment in retraxit disclaiming on their behalf any right, title or interest in the land in question. There are no findings of fact determining this question. The judgment does not purport to determine this question. The cause must be remanded for this determination .... [Citation omitted.]\nSuch is the problem here. Neither the Clerk\u2019s order or Judge Brown\u2019s order addressed or dealt with respondents\u2019 allegations of lack of consent, which we note was supported by affidavits of both respondents. Accordingly, the order of Judge Brown must be reversed and this matter remanded to the Superior Court of Nash County for determination of the factual issue of whether respondents authorized their attorney to consent to the Clerk\u2019s order. Should this determination be made against respondents, the Clerk\u2019s order should again be affirmed. Should this determination be made in respondents\u2019 favor, the matter should then be remanded to the Clerk for a hearing on the merits of the petition for partition.\nReversed and remanded with instructions.\nChief Judge Hedrick and Judge Martin concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "James W. Keel, Jr. for petitioner.",
      "Cedric R. Perry for respondents."
    ],
    "corrections": "",
    "head_matter": "ALEXANDER LYNCH, unmarried v. JOSEPHINE LYNCH, unmarried, FLORENE L. LYNCH and husband. KINZIE LYNCH, STELLA L. RICHARDSON, widow, ANNIE L. STALLINGS and husband, JAMES STALLINGS, PERRY M. LYNCH and wife, ZULENE LYNCH, JOHN N. LYNCH and wife, MAGNOLIA LYNCH, VIOLET BATTLE MARSHALL, unmarried, EMMA BATTLE BROWN and husband, FRED BROWN, MATTHEW A. BATTLE, unmarried, ANNIE BATTLE BULLUCK and husband, GARLAND BULLUCK, SAMUEL BATTLE and wife, LAURA BATTLE, JAMES EDWARD MITCHELL, unmarried, JIMMY R. MITCHELL and wife, LILLIAN MITCHELL, JOSEPH LEE MITCHELL and wife, BESSIE MAE MITCHELL, WILLIE L. MITCHELL and wife, MARY MITCHELL, ERNESTINE MITCHELL, unmarried, DOROTHENE M. HUNTER and husband, DAVID HUNTER, ELLAWESE HARRIS WALKER and husband, FREDDIE D. WALKER, WILLIAM E. HARRIS, unmarried, EUZELIA H. JOHNSON and husband, AUTTIE JOHNSON, LONNIE F. HARRIS and wife, RUTH HARRIS, RUTH H. SLADE, unmarried, ESTELLA H. CONNOR, and husband, PETER CONNOR, MARGARET H. SARGENT and husband, ROBERT SARGENT, and FLETCHER HARRIS and wife, MARTHA HARRIS\nNo. 847SC863\n(Filed 7 May 1985)\nJudgments g 21.1\u2014 authority of attorney to consent to judgment\nProceeding must be remanded for a determination as to whether respondents authorized their attorney to consent to an order for the sale of lands owned by tenants in common. G.S. 1A-1, Rule 60(b)(4).\nAppeal by respondents James and Annie Stallings from Brown, Judge. Order entered 17 May 1984 in Nash County Superior Court. Heard in the Court of Appeals 15 April 1985.\nThis proceeding was instituted by a petition seeking the sale of lands owned by tenants-in-common. Respondents answered, seeking to own their interest in severalty by having the land divided. Following a hearing, a consent order was entered by the Clerk of Nash County Superior Court on 13 February 1984, ordering the sale of the lands. On 16 March 1984, respondents filed a motion in the cause to set aside the Clerk\u2019s order of sale, alleging, inter alia, that respondents had not consented to the order, that they had not learned until 2 March 1984 that their attorney had consented to the order, and that their attorney gave consent without their authority. Respondents\u2019 motion was denied by the Clerk. Respondents then appealed the Clerk\u2019s order to the superior court. On 17 May 1984, Judge Brown entered his order affirming the Clerk\u2019s order denying respondents\u2019 motion. It is from Judge Brown\u2019s order that respondents appeal to this court.\nJames W. Keel, Jr. for petitioner.\nCedric R. Perry for respondents."
  },
  "file_name": "0540-01",
  "first_page_order": 572,
  "last_page_order": 575
}
