9 N.C. App. 102 | N.C. Ct. App. | 1970
This case deals with a complex matter which has dragged on for 22 years. The record and exhibits total some 538 pages. Much of the factual material and many of the contentions placed before the court are extraneous to the issues which we now perceive to be dispositive.
In our view, several salient points both chart the course of this appeal and determine the outcome: (1) The clerk had jurisdiction over the parties, lands and timber encompassed in his order of 22 April 1964. (2) All parties except Virginia Johnson Scarborough consented to a judgment dismissing the appeal
The pleading which serves as a basis for entry of the 22 April 1964 order is the original ex parte petition for partition filed in 1948. It provides adequate descriptions of the lands involved and states that the timber is to be sold and the proceeds distributed in accordance with the respective interests as determined in the proceeding. The lands are described in the petition by references to books and pages in the county registries; the descriptions in the order of 22 April 1964 are by metes and bounds. The movants now argue that certain lands before the clerk in 1964 were not involved in the 1948 petition, but we are unable to determine this from the record. As jurisdiction is presumed, Jackson v. Bobbitt, 253 N.C. 670, 117 S.E. 2d 806, the burden was on the movants to establish this assertion as a matter of fact. The record on its face does not reveal a want of jurisdiction and the movants have offered no other evidence.
Regarding the timber, the 22 April 1964 order merely attempted to effectuate the order of 1950 and the desires of the parties as stated in the 20 October 1948 petition and the 7 February 1964 motion. To whatever extent any new grown timber was encompassed in the 1964 order, it was not a new res but was reasonably within the jurisdiction acquired over timber by the 1948 petition which included all timber “ten (10) inches or more in diameter measured across the stump twelve (12) inches above the ground at the time of cutting” without setting a time for cutting.
Although the division agreement and the consent judgment dismissing the appeal are void as to Virginia Johnson Scarborough because she was not a party, her absence creates no rights in favor of the movants herein. As to the movants, a consent judgment “is as binding and has the same force and effect as if it had been entered by the court in regular course.” Edmundson v. Edmundson, 222 N.C. 181, 22 S.E. 2d 576. In Overton v. Overton, 259 N.C. 31, 129 S.E. 2d 593, the court said that such a judgment “depends for its validity upon the consent
In Overton the court pointed out that the proper procedure to attack a consent judgment on the ground that a party thereto did not give his consent to the judgment as entered is by motion in the cause. In Howard v. Boyce, 254 N.C. 255, 118 S.E. 2d 897, the court stated that “* * * a judgment bearing the consent of a party’s attorney of record is not void on its face. Indeed, it is presumed to be valid; and the burden of proof is on the party who challenges its invalidity.” (Emphasis added.)
The movants have asserted strenuously that G.S. 1-401 requires that “written authorization must be filed with the clerk before he may make any order or decree to prejudice their rights,” and that the motion of 7 February 1964 is therefore void for want of authorization. The statute, however, clearly applies only when all persons to be affected present an ex parte proceeding to the clerk and he acts summarily; the statute provides that in that event all parties must sign the petition, or must sign and file with the clerk (1) a written application to be made petitioners or (2) a written authorization to the attorney, before the clerk may make any order or decree prejudicing their rights. We think this proceeding was 'presented by the original petition in 1948. Generally, the rule is that the attorneys must have proper authority, but under Howard v. Boyce, supra, that authority is presumed when the attorneys are of record and the document is valid on its face.
For the reasons stated, we hold that Judge Cowper erred in the entry of the order appealed from; the order is vacated and this cause is remanded to the Superior Court of Duplin County for further proceedings consistent with this opinion.
Error and Remanded.
