86 S.E. 518 | N.C. | 1915
After stating the case: The plaintiff has assigned eleven errors, as having been committed by the court in respect to its order setting aside the former judgment of the court, whereas only two exceptions were entered to the order of Judge Peebles at the time it was made. The object of an assignment of error is not to create a new exception, which was not taken at the hearing, but to select from those which were taken such as the appellant then relies on after he has given more deliberate consideration to them than may have been possible during the progress of the trial or hearing. The assignment of *623
error, therefore, must be based upon the exception duly taken at the time it was due in the orderly course of procedure, and should coincide with and not be more extensive than the exception itself. In other words, no assignment of error will be entertained which has not for its basis an exception taken in apt time. Worley v. Logging Co.,
But in order to bind a party by an alleged consent judgment, it must necessarily appear that his consent thereto was given, and if the contrary appears, it is, of course, not a consent judgment, and then the question arises, if the judgment was in any other way authorized by the law. Where an answer is filed denying the allegations of the complaint, the defendant is entitled to a trial by a jury, unless it is waived in the manner prescribed by law, or unless he gives his consent that (546) judgment may be entered notwithstanding his answer, and if the court renders judgment upon a complaint, the allegations of which are denied, and without the consent of the party, or a trial by the jury, the judgment will be irregular, and the court will set it aside on motion. So that in this case the order of the court was correct, unless there is merit in the other exception taken by the plaintiff, which is, that the court should set aside the entire judgment. It did set aside the judgment, in its entirety, so far as it affected Fisher, but we understand the plaintiff to contend that the court should have set aside the judgment as to A. T. Dill, the other defendant. When we examined the judgment itself, which was entered at the September Term, 1913, by Judge Whedbee, we find that the judgment, as to Dill, apparently had no connection with that part of the judgment against Fisher. It recites that Harrison and Fisher had come to an agreement as between themselves in regard to the controversy, and then it is stated that J. M. Harrison, the plaintiff, withdraws his suit as against the said A. T. *625
Dill, and admits his inability to sustain his allegations as to him. This was clearly a nonsuit or retraxit as to Dill, leaving the suit as pending between Harrison and Fisher alone, and a compromise or consent judgment is then entered as between them and without regard to any liability of A. T. Dill. So that the court in this case has complied with the rule that a decree by consent must stand and operate as an entirety or be vacated altogether, unless the parties by like consent shall agree upon and incorporate into it some alteration or modification, or some new term. "If a clause be stricken out against the will of the party, then it is no longer a consent decree, nor is it a decree of the court, for the court never made it." Edney v. Edney, supra; Stump v. Long,
Affirmed.
Cited: Bloxham v. Timber Corp.,
