Espie BLANKENSHIP and Melo Blankenship
v.
Plezz PRICE and wife, Mrs. Plezz Price.
No. 7522SC280.
Court of Appeals of North Carolina.
September 3, 1975.*710 John S. Willardson, North Wilkesboro, and Joe O. Brewer, Wilkesboro, for plaintiff appellants.
No counsel contra.
PARKER, Judge.
A consent judgment is the contract of the parties entered upon the records of a court of competent jurisdiction with its sanction and approval. King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945). Being a contract, it cannot be changed without the consent of the parties or set aside except upon proper allegation and proof that consent was not in fact given or that it was obtained by fraud or mutual mistake, the burden being upon the party attacking the judgment. 5 Strong, N.C.Index 2d, Judgments, § 21, pp. 41, 42. Here, no question is raised that plaintiffs' consent was not in fact given when they signed the consent judgment nor do plaintiffs contend that they signed the judgment either because of any fraud practiced by defendants or because of any mutual mistake of the parties. Rather, plaintiffs' sole contention is that they signed the consent judgment as result of a unilateral mistake on their part as to what was represented on the map prepared by the court-appointed surveyor and that their mistake was induced either by the surveyor's mistake or by his intentional fraud in failing to portray accurately upon the map their contentions as to the correct location of the boundary line as they had expressed these contentions to him orally at the time he was on the ground making his survey. Plaintiffs do not contend that the surveyor was the agent of the defendants or that defendants were otherwise responsible for the surveyor's actions.
In general, a unilateral mistake in the making of an agreement, of which the other party is ignorant and to which he in no way contributes, will not afford grounds for avoidance of the agreement. 17 Am. Jur.2d, Contracts, § 146. However, we need not now decide whether plaintiffs have asserted grounds sufficient to entitle them to be relieved from their contract embodied in the consent judgment in the present case, since in any event we find the trial court's essential findings of fact in the order appealed from to be supported by competent evidence, and plaintiffs have failed to carry their burden of proving even their asserted grounds for relief.
*711 The surveyor was appointed by the court "to survey the contentions of the plaintiffs and the contentions of the defendants in this cause." Plaintiffs' contentions were initially contained in their verified complaint. In the description of their property as contained in their complaint, the southern boundary line of plaintiffs' tract, which is the line which divides their property from that of defendants' which lies to the south thereof, is described as running from a certain poplar "West 180 poles to a dead pine." At the hearing on plaintiffs' motion to set aside the consent judgment, the surveyor testified that the plaintiffs were present while he was on the ground and that they pointed out to him a marked poplar tree which he designated on the map as point A. It is apparent from the record that both plaintiffs and defendants agreed that this marked poplar, designated as point A on the map, correctly marked the eastern terminus of the dividing line between their respective tracts. The surveyor also testified that the plaintiffs pointed out to him on the ground an iron stake in a pine stump, which he designated on the map as point D, as being a corner of their property. The surveyor showed point D on the map as the western terminus of the dividing line. He then showed the dividing line as a straight line running from point A, the marked poplar, to point D, the iron in the pine stump, for a distance of 2948.54 feet. Plaintiffs having alleged in their verified complaint that the dividing line was a straight line and the surveyor having shown the termini at points contended for by plaintiffs, there was ample support for the court's findings that the surveyor "has surveyed the contentions of the plaintiffs" and that he "did not intentionally or otherwise defraud the plaintiffs." That certain trees and other objects which plaintiffs contended orally to the surveyor were on their side of the line were ultimately found to be on defendants' side does not compel a finding that he failed to survey their "contentions." The evidence presented at the hearing on plaintiffs' motion, when considered in the light of the facts alleged in plaintiffs' verified complaint, supports the court's findings and its order denying the motion.
In passing, we note that our Supreme Court has consistently held in cases decided prior to the effective date of our new Rules of Civil Procedure that the proper procedure to attack a consent judgment on the ground of want of consent at the time it was entered is by motion in the cause, Overton v. Overton, 259 N.C. 31, 129 S.E.2d 593 (1963); Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794 (1948); King v. King, 225 N.C. 639, 35 S.E.2d 893 (1945), but that the proper procedure to set aside a consent judgment for fraud or mutual mistake is by independent action. Becker v. Becker, 262 N.C. 685, 138 S.E.2d 507 (1964); King v. King, supra; Keen v. Parker, 217 N.C. 378, 8 S.E.2d 209 (1940); see, Robinson v. Mc-Adams, 11 N.C.App. 105, 180 S.E.2d 399 (1971). The difference in procedure is more than one merely of form, since in an independent action either party by making timely application would be entitled to a jury trial, while a hearing on a motion is before the judge. For this reason we question whether Rule 60 of the Rules of Civil Procedure effects a change in our former practice to the extent of authorizing an attack upon a consent judgment on the grounds of mutual mistake or fraud of the adverse party to be made by motion rather than by independent action. That question we do not decide in the present case, since the attack upon the judgment here was not made on the grounds of mutual mistake or of fraud of the adverse party, but on the grounds of a mistake of fraud of the surveyor appointed by the court itself, thus presenting a question perhaps more appropriately addressed to the court than to a jury. In any event, defendants did not raise any objection to the procedure by motion in the present case, and plaintiffs, who chose that procedure, are hardly in position to complain.
The order appealed from is
*712 Affirmed.
BROCK, C. J., and ARNOLD, J., concur.