The parties in the case having compromised on certain terms, an entry was made on the docket in these words, to wit: "Compromised and dismissed at cost of the defendant, provided the cost is paid." At the next term thereafter it appeared that the cost was not paid, and the plaintiff's counsel moved that the entry be stricken out and that the cause stand for trial on the docket. To sustain this motion, (488) he produced several affidavits showing that a part of the *Page 372 compromise was that the plaintiff was to be restored to her home, and was to be well treated and provided for by her husband; he also urged the nonpayment of the costs as one of the ground for setting aside the entry.
The defendant filed his own affidavit, not denying the terms of compromise as alleged by the plaintiff, and insisting that he has been ready and willing to perform it as stated by her, and giving reasons why the plaintiff had not returned home, and also why the cost had not been paid.
The Superior Court, on consideration of the motion and the facts disclosed, made the following order: "It appearing to the satisfaction of the court that the entry made by the clerk upon the trial docket did not contain the full and true terms of the compromise and agreement in said case, that said defendant has not complied with the said compromise and agreement, it is ordered that the case stand for trial at the next term of this court."
From which order the defendant prayed an appeal to the Supreme Court, which was allowed. This is an appeal by leave from an interlocutory order of the Superior Court for Davidson. Pending a suit between the parties for a divorce, a compromise was agreed upon and partly entered of record, some of the conditions of the compromise being omitted. At the term next after the compromise evidence was laid before the court, by affidavit, of the omission above stated and of the non-performance generally of the conditions; whereupon the court ordered what was upon the record to be stricken out, and the case to stand upon the docket for trial.
We think this order cannot be supported, because of defect of power in the court. Compromises put a speedy end to contentions and, (489) therefore, commend themselves to the favorable regard of the courts. They are entered of record, and may be enforced by rules upon the respective parties to perform, and by attachments, if need be. The courts cannot unmake any more than they can make them at pleasure; but will see that they are properly entered upon the records, when made, and faithfully carried into execution, if practicable. Without discussing the powers which the court might have over such compromises in certain states and conditions of them, it is sufficient to say that neither the imperfect state of the record nor the neglect of one party to perform and the consequent dissatisfaction of the other, would furnish the court with an occasion for the exercise of a power to abrogate. *Page 373
This disposes of the question before us and shows that there is error in the order appealed from. The proper course would have been to amend the record as to the terms of the compromise nunc pro tunc, so as to make it speak the truth, and then to compel its performance by the exercise of such powers as are usual and proper with the court to enforce its rules. The powers of amendment are unquestionable, and the powers to enforce are also clear; Freeman v. Morris, 44 N.C. 287; Kirkland v. Mangum, 50 N.C. 313.
We take this occasion to reaffirm that we interfere with no discretionary power of the Superior Court. The order complained of does not lie within the Court's discretion, but is a mistaken exercise of power.
PER CURIAM. Reversed.
(490)