Lalanne v. Lalanne

259 S.E.2d 402 (1979)

43 N.C. App. 528

Virginia B. LALANNE v. James F. LALANNE.

No. 7915DC359.

Court of Appeals of North Carolina.

November 6, 1979.

*403 Nichols, Caffrey, Hill, Evans & Murrelle by William D. Caffrey and Everett B. Saslow, Jr., Greensboro, for plaintiff-appellee.

Bryant, Bryant, Drew & Crill by Victor S. Bryant, Jr., Durham, for defendant-appellant.

HILL, Judge.

The judgment entered in this cause filed on 29 January 1979 must be revoked. Ordinarily, where a judgment is rendered in open court and some memorandum or minute of the note appears of record showing what the judgment is, formal judgment based thereon may be later entered. This rule does not apply to a consent judgment, which requires the consent of the parties to subsist at the time it is signed in order to give the court jurisdiction. A consent judgment is not, strictly speaking, a judgment of the court, but is merely the contract of the parties entered upon the records of a court of competent jurisdiction with its approval and sanction, and such contract cannot be modified or set aside without the consent of the parties thereto. Lee v. Rhodes, 227 N.C. 240, 41 S.E.2d 747 (1947); Highway Comm. v. Rowson, 5 N.C.App. 629, 169 S.E.2d 132 (1969); Freedle v. Moorefield, 17 N.C.App. 331, 194 S.E.2d 156 (1973).

The agreement dictated to the court on 5 September 1978 did not constitute a consent judgment. Neither party nor the judge signed the memorandum. There was no consent by the defendant to the entry of judgment by the judge in January 1979, *404 and the judge had no authority to enter the same. If the writing entered by the court on that date is a contract between the parties, it must be litigated in another suit on another date.

The judgment is revoked and the case is remanded to the district court of Orange County for trial.

Judgment Vacated and cause Remanded.

VAUGHN and ERWIN, JJ., concur.