#### R. L. WILLIAMSON v. ALICE WILLIAMSON, Executrix of J. P. WILLIAMSON, Deceased, and ALICE WILLIAMSON, Individually.

(Filed 27 September, 1944.)

1. Judgments §§ 2, 3—

The power of the court to sign a consent judgment, or to approve a compromise agreement of tbe parties, depends upon the unqualified consent of the parties, leaving nothing more to be ascertained by the court. Such consent must still subsist at the time the court is called upon to exercise its jurisdiction.

2. Same—

A consent judgment may not be signed nunc pro tuno over the objection of one of the parties.

Appeal by plaintiff from Pless, J., at June Term, 1944, of Ruther-eobd.

Siover P. Dunagan for plaintiff, appellant.

J. S. Dochery for defendant, appellee.

Seawell, J.

There was pending in the Superior Court of Rutherford County an action for the foreclosure of a tax lien brought by the plaintiff, R. L. Williamson, against J. P. Williamson and wife, Alice Williamson. Pending its hearing, there was a compromise agreement between the parties which took the form of a consent judgment, to be subsequently signed by the clerk of the Superior Court upon condition that the plaintiff had meantime complied with the terms of the agreement which, upon the undisputed facts, meant the payment of a balance of $50.00. That judgment was never signed by the clerk — but meantime, the plaintiff remained in possession of the land. Some seven years after the agreement had been made between the parties, plaintiff gave notice to Mrs. J. P. Williamson that he would move in the Superior Court at a stated day to have the judgment signed by the court.

Upon the hearing of this motion, Judge Pless conceiving the matter still to be before the clerk of the court, sent the motipn back to that official for his action.

At the hearing before the clerk, the defendant, Mrs. Alice Williamson, acting as executrix of J. P. Williamson and in her individual right, opposed the motion, withdrew consent, and thereupon the clerk declined to sign the judgment.

On the appeal to the Superior Court, Judge Pless presiding, the action of the clerk of the court in refusing to sign the judgment was upheld, and plaintiff appealed.

*475There are two outstanding reasons why tbe judgment of tbe Superior Court confirming tbe action of tbe clerk in refusing-to sign tbe judgment must be sustained. 'Tbe first is tbat tbe compromise agreement or consent judgment of tbe parties was transmitted to tbe clerk to be signed only upon condition. How tbe satisfaction of tbat condition should be ascertained is not clear; nor is it material, since unqualified consent of tbe parties, leaving nothing more to be ascertained by tbe court, is essential. Tbe acceptance of such consent and its promulgation is tbe judgment of tbe court. It is an undisputed fact, however, tbat no compliance was ever made with tbe conditions precedent to tbe signing of tbe judgment. Tbe second reason is tbat tbe consent of tbe parties must still subsist at tbe time tbe court is called upon to exercise its jurisdiction and sign tbe consent judgment. Lynch v. Loftin, 153 N. C., 270, 69 S. E., 143; Rodriguez v. Rodriguez, ante, 275, 29 S. E. (2d), 904.

We deem it unnecessary to go into an extended analysis of tbe nature of consent judgments, or to burden tbe opinion with a restatement' of tbe holdings of tbe court on tbat subject. Tbe principle requiring tbe consent to be outstanding at tbe time tbe judgment is signed or rendered arises from tbe fact tbat tbe agreement of tbe parties is extrajudicial at tbe time of its making and at all times until tbe agreement is presented to tbe court for its adoption and promulgation. In law it was not so presented until tbe final bearing of tbe motion by tbe clerk under tbe order of Judge Pless, and, therefore, not until after consent bad been withdrawn.

Bearing generally upon tbe nature of consent judgments, see Keen v. Parker, 217 N. C., 378, 8 S. E. (2d), 209; Jones v. Grigg, 223 N. C., 279, 25 S. E. (2d), 862; Edmundson v. Edmundson, 222 N. C., 181, 22 S. E. (2d), 576.

Tbe judgment could not have been signed nunc pro tunc> since tbe clerk bad neither tbe duty nor tbe authority to sign it in tbe first instance.

Tbe judgment of tbe court below is

Affirmed.