Chavis v. Brown

12 Citing cases

  1. In re Johnson

    178 S.E.2d 470 (N.C. 1971)   Cited 15 times
    Noting attorneys' signatures can validate consent

    Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593; Brown v. Owens, 251 N.C. 348, 111 S.E.2d 705; 5 Strong's N.C. Index 2d, ibid. A consent judgment signed by the attorneys for the parties is presumed to be valid and the burden of proof is upon the one who challenges its invalidity. Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897; Chemical Co. v. Bass, 175 N.C. 427, 95 S.E. 766; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Gardiner v. May, 172 N.C. 192, 89 S.E. 955; 1 Strong's N.C. Index 2d, Attorney and Client 3. In this case, there was no allegation or proof of fraud or mutual mistake.

  2. Collins v. Simms

    257 N.C. 1 (N.C. 1962)   Cited 43 times

    The decisions in this and other jurisdictions establish no strict lines of demarcation, in this category of judgments, for determining whether particular judgments are erroneous, irregular or void. We have held judgments of Superior court which were inconsistent and at variance with, contrary to, and modified, corrected, altered or reversed prior mandates of the Supreme Court in the respective causes, especially where they amounted to insubordination, to be unauthorized and void. Newberry v. Fertilizer Co., 206 N.C. 182, 173 S.E. 67; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Banking Co. v. Morehead, 126 N.C. 279, 35 S.E. 593; Black v. Black, 111 N.C. 300, 16 S.E. 412; Stephens v. Koonce, 106 N.C. 222, 10 S.E. 996; In re Griffin, 98 N.C. 225, 3 S.E. 515; White v. Butcher, 97 N.C. 7, 2 S.E. 59. But we have held judgments, which indicated the judge misunderstood and misinterpreted the opinion of this Court on former appeal and gave it broader significance or narrower scope than we intended, to be erroneous. Robertson v. Robertson. 255 N.C. 581, 122 S.E.2d 385; Cannon v. Cannon, 226 N.C. 634, 39 S.E.2d 821; Durham v. Cotton Mills, 144 N.C. 705, 57 S.E. 465; Dobson v. Simonton, 100 N.C. 56, 6 S.E. 369; Isler v. Brown, 69 N.C. 125. Judgments of the lower court have been held to be erroneous in a number of cases where its rulings were inconsistent with prior appellate decisions.

  3. Howard v. Boyce

    254 N.C. 255 (N.C. 1961)   Cited 37 times
    In Howard v. Boyce, 254 N.C. 255, 118 S.E.2d 897 (1961), the Court held that "[o]n the question of laches the record before us shows nothing more than considerable lapse of time and is insufficient to support the finding `that the movants have been guilty of laches and unreasonable delay.'"

    To compromise his client's cause or enter a consent judgment with respect thereto, an attorney must be so authorized. But "when a compromise has been made and formally embodied in a court judgment, it is presumed to have been rightfully entered until the contrary is made to appear, and one who undertakes to assail such a judgment has the burden of making good his impeaching averments to the satisfaction of the court." Chavis v. Brown, 174 N.C. 122, 93 S.E. 471. Unless procured by fraud or mutual mistake, a judgment which, upon the face of the record, is apparently valid may be set aside only by motion in the cause and by the court wherein it was rendered.

  4. King v. King

    35 S.E.2d 893 (N.C. 1945)   Cited 37 times

    While it is a settled principle of law in this jurisdiction that a consent judgment cannot be modified or set aside without the consent of the parties thereto, except for fraud or mutual mistake, and the proper procedure to vacate such judgment is by an independent action; it is equally well settled that when a party to an action denies that he gave his consent to the judgment as entered, the proper procedure is by motion in the cause. Williamson v. Williamson, 224 N.C. 474, 31 S.E.2d 367; Rodriguez v. Rodriguez, 224 N.C. 275, 29 S.E.2d 901; Gibson v. Gordon, 213 N.C. 666, 197 S.E. 135; Morgan v. Hood, Comr. of Banks, 211 N.C. 91, 198 S.E. 115; Cason v. Shute, 211 N.C. 195, 189 S.E. 115; Deitz v. Bolch, 209 N.C. 202, 183 S.E. 384; Bank v. Penland, 206 N.C. 323, 173 S.E. 345; Bizzell v. Equipment Co., 182 N.C. 98, 108 S.E. 439; Chemical Co. v. Bass, 175 N.C. 426, 95 S.E. 766; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Cox v. Boyden, 167 N.C. 320, 83 S.E. 246. The appellant on the one hand argues that the judgment having been entered by consent, is subject to attack only by an independent action; but does not contend that his consent was obtained by fraud or mutual mistake.

  5. Harrington v. Buchanan

    29 S.E.2d 344 (N.C. 1944)

    When this is shown it is presumed, as held on former appeal, supra, that he acted within the scope of his authority, and the burden is on the party seeking to set the transfer aside, to prove that no such authority existed. See Gardiner v. May, 172 N.C. 192, 89 S.E. 955; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Chemical Co. v. Bass, 175 N.C. 426, 95 S.E. 766; Bizzell v. Equipment Co., 182 N.C. 98, 108 S.E. 439; Barnes v. Trust Co., 194 N.C. 371, 139 S.E. 689; Bank v. Penland, 206 N.C. 323, 173 S.E. 345; Jones v. Waldroup, 217 N.C. 178, 7 S.E.2d 366; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209. In other words, plaintiffs have the burden of proving the record, and defendants have the burden of making good their attack upon the record, and not simply the burden of going forward with evidence.

  6. Morgan v. Hood, Comr. of Banks

    189 S.E. 115 (N.C. 1937)   Cited 6 times

    Such authority will not be presumed from his employment, and a judgment by consent of the attorney founded upon a compromise made by him, without such authority, will ordinarily be vacated and set aside on motion of the client made in apt time. See Bank v. Trotter, 207 N.C. 442, 177 S.E. 325; Chavis v. Brown, 174 N.C. 122, 93 S.E. 471; Bank v. McEwen, 160 N.C. 414, 76 S.E. 222; Morris v. Grier, 76 N.C. 410; Moye v. Cogdell, 69 N.C. 93. In the last cited case, it is held that authority to compromise a case, and to consent to a judgment founded on such compromise, cannot be conferred upon an attorney by an agent who was authorized by his principal to employ an attorney.

  7. Deitz v. Bolch

    209 N.C. 202 (N.C. 1936)   Cited 11 times

    While it is admitted in the original pleadings that on the notes sued on defendant Setzer was endorser only, yet he personally signed his consent that the judgment thereon should be taken against him and his codefendant jointly and severally. From this he could not be relieve except by consent of Bolch, or by some appropriate action to impeach the judgment to which he has consented, and this he has not done. The court below was not without authority to consider the motion raised by defendant Bolch's petition, whether it be treated as motion to set aside the judgment of September, 1934, on account of inadvertence, surprise, or excusable neglect, under C. S., 600, or as irregular, or in the exercise of the power of the court to correct a mistake due to inadvertence or imposition. Strickland v. Strickland, 95 N.C. 471; Cox v. Boyden, 167 N.C. 320; Bank v. McEwen, supra. As was said in Chavis v. Brown, 174 N.C. 122: "This being an application to set aside a judgment because this Court was imposed upon by a compromise alleged to be entirely without authority, a motion in the cause supported by affidavits is the proper procedure, and a jury trial is not allowed as a matter of right." This cause is therefore remanded to the Superior Court of Catawba County for the determination of the issue raised by the motion and verified petition of defendant Bolch, that is whether D. Locke Russell was authorized to consent for and on behalf of defendant Bolch to the judgment of September, 1934, and for such further proceedings as may be lawful and proper.

  8. Davis v. Storage Co.

    120 S.E. 462 (N.C. 1923)   Cited 9 times

    The same course has been pursued in many other cases since. Among them are Industrial Siding Case, 140 N.C. 244; Smith v. Moore, 150 N.C. 159; Griffin v. R. R., ib., 315; Battle v. Rocky Mount (Walker, J.) 156 N.C. 339; Chavis v. Brown (Hoke, J.), 174 N.C. 123. Judgment will be entered accordingly in this Court in favor of the plaintiff for $8,939.37.

  9. Cox v. Boyden

    83 S.E. 246 (N.C. 1914)   Cited 13 times

    Error. Cited: Chavis v. Brown, 174 N.C. 124 (2c); Chemical Co. v. Bass, 175 N.C. 430 (2j); Cahoon v. Brinkley, 176 N.C. 7 (1c); Gough v. Bell, 180 N.C. 270 (3c); S. v. Humphrey, 186 N.C. 535 (2p); Livestock Co. v. Atkinson, 189 N.C. 252 (3c); Fowler v. Fowler, 190 N.C. 539 (3c); Foster v. Allison Corp., 191 N.C. 173 (3c); Bisanar v. Suttlemyre, 193 N.C. 712 (1c); S. v. Crowder, 195 N.C. 336 (1c); Deitz v. Bolch, 209 N.C. 206 (2c); King v. King, 225 N.C. 641 (2c); Henderson v. Henderson, 232 N.C. 10 (2c).

  10. Massie v. Hainey

    81 S.E. 135 (N.C. 1914)   Cited 24 times

    Error. Cited: Cox v. Boyden, 167 N.C. 321 (1f); Lowman v. Ballard, 168 N.C. 18 (1f, 2f); Moody v. Wike, 170 N.C. 544 (1g); Starnes v. Thompson, 173 N.C. 468 (1g); Chavis v. Brown, 174 N.C. 124 (1f); Graves v. Reidsville, 182 N.C. 332, 333 (1f, 2f); Lyman v. Coal Co., 183 N.C. 587 (1f); Clark v. Homes, 189 N.C. 708 (1f); Ellis v. Ellis, 190 N.C. 422 (1f); Foster v. Allison Corp., 191 N.C. 173 (2g); Dunn v. Wilson, 210 N.C. 494 (1f); Downing v. White, 211 N.C. 42 (1g); In re Taylor, 230 N.C. 569 (1g). (180)