R. E. Uptegraff Manufacturing Co. v. International Union of Electrical Radio & Machine Workers

20 N.C. App. 544 | N.C. Ct. App. | 1974

BALEY, Judge.

Defendants have excepted to all of Judge Maddrey’s orders, and assert that all of them are invalid. They attack the consent order of March 15 on two grounds. First, they contend that it was not in fact based on the consent of the parties; and second, they argue that it violated Rule 65(d) of the Rules of Civil Procedure.

Clearly a consent order cannot be valid unless the parties actually consent to it. “The 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 and promulgates it as a judgment.” King v. King, 225 N.C. 639, 641, 35 S.E. 2d 893, 895; accord, Overton v. Overton, 259 N.C. 31, 129 S.E. 2d 593; Highway Comm. v. Rowson, 5 N.C. App. 629, 169 S.E. 2d 132. Defendants argue that since the parties never signed the first consent order, they did not consent to it; and likewise, since plaintiff did not sign the second consent order, it did not consent to that order. However, a consent judgment need not be signed by the parties in order to become effective. Stanley v. Cox, 253 N.C. 620, 117 S.E. 2d 826. The parties may give their consent orally. Perley v. Bailey, 89 N.H. 359, 199 A. 570 (1938); Schoren v. Schoren, 110 Ore. 272, 290-91, 222 P. 1096, 1097 (1924); see Westhall v. Hoyle, 141 N.C. 337, 53 S.E. 863. In this case Judge Maddrey found as a fact that at the hearing on March 15 the parties had consented orally to the provisions of the first consent order. A litigant who- has consented to an order may withdraw his consent at any time before the order is signed and entered, Lee v. Rhodes, 227 N.C. 240, 41 S.E. 2d 747, but here the record shows that defendants gave no indication of their dissatisfaction, with the first consent order until March 30, fifteen days after the order was signed. Even at that time they signified their previous consent by signing a second consent order which did not significantly change the first order. Defendants’ contention that the order of March 15 is void for want of consent cannot be sustained.

Rule 65(d) of the North Carolina Rules of Civil Procedure provides: “Every order granting an injunction and every restraining order shall set forth the reasons for its issuance . . . . ” Judge Maddrey’s order of March 15 states only that it was issued by consent of the parties, and defendants question whether this is a sufficient statement of reasons. It would appear that the order does comply sufficiently with Rule 65(d). A consent order is based solely on the consent of the parties, and not on any determination of facts or application of legal principles by the judge. In fact, a consent order is generally referred to as a contract between the parties, entered on the records with the approval of the court. Layton v. Layton, 263 N.C. 453, 139 S.E. 2d 732; Stanley v. Cox, supra; Highway Comm. v. Rowson, supra. When an order provides that it is issued by consent of the parties, it correctly sets forth the reason for its issuance.

Even if Judge Maddrey’s statement of reasons had been insufficient under Rule 65(d) defendants would still have been bound by the consent order, because it would not have been void but only irregular. An order is void only when it is issued by a court that does not have jurisdiction (or, in the case of a consent order, when it is issued without the parties’ consent). Lumber Co. v. West, 247 N.C. 699, 102 S.E. 2d 248; Travis v. Johnston, 244 N.C. 713, 95 S.E. 2d 94; Bass v. Moore, 229 N.C. 211, 49 S.E. 2d 391. An order issued “contrary to the method of practice and procedure established by law” is classified as irregular. Collins v. Highway Commission, 237 N.C. 277, 284, 74 S.E. 2d 709, 715; accord, Pruitt v. Taylor, 247 N.C. 380, 100 S.E. 2d 841. A void order is a nullity, binding on no one, and may freely be ignored. Lumber Co. v. West, supra; Moore v. Humphrey, 247 N.C. 423, 101 S.E. 2d 460. But an irregular order stands as the judgment of the court and is binding on the parties until it is corrected. Lumber Co. v. West, supra; Collins v. Highway Commission, supra. If the consent order had been irregular, defendants would still have been required to obey it, and they could have been held in contempt for violating it.

Defendants contend that the court violated Rule 65(d) in issuing the orders of May 11, June 4 and August 23. This contention is without merit, because Rule 65(d) applies only to injunctions and restraining orders. One of the May 11 orders was a contempt order, and the other confirmed the validity of the first consent order. The orders of June 4 and August 23 were contempt orders. None of these orders came within the scope of Rule 65 (d). Defendants also assert that the orders of May 11, June 4 and August 23 were contingent upon a prior void order, the consent order of March 15; but since the consent order was valid, this argument is untenable.

It is not necessary for this Court to consider whether any error was committed in the orders of February 23 and March 3. These two orders were superseded by the March 15 consent order and are no longer in effect. Defendants’ contempt sentences were imposed for violation of the March 15 order. If the February 23 and March 3 orders were in any way improper, the error was not prejudicial to defendants.

This case involves conduct of defendants over a period of several months with intermittent court appearances. The restraining order of the trial court was clear, and the evidence of its violation was specific, detailed, and well-documented. By its various suspended judgments in the face of such contumacious conduct, the court demonstrated a patient and conciliatory attitude toward the defendants, but respect for the law must be maintained. The judgments of Judge Maddrey holding defendants in contempt of court and imposing appropriate sentences and fines are affirmed.

Affirmed.

Judges Paekee and Hedeick concur.