dissenting.
This is a case of first impression in Oregon. The *147issue is the validity of the procedure followed by the state in the compromise and settlement of welfare paternity cases.
The majority concludes that a putative father who admits paternity and agrees in writing before suit to the entry of a decree for the support of the child, and a decree is duly entered pursuant to that agreement, that father nevertheless can come into court some six years later and have the decree set aside because he was not served with a summons and complaint.
I cannot agree. My research, the results of which are summarized below, indicates that the majority conclusion is incorrect and contrary to the weight of authority in the United States.
Starting with the basics, it is of course true as a . general rule that a valid personal judgment cannot be entered against an individual without obtaining jurisdiction over his person by personal service of process within the state, or by valid constructive service upon that individual. However, there is a recognized exception to the above rule to the effect that an individual may voluntarily agree before action to submit to the jurisdiction of a court of competent jurisdiction, and that a judgment entered pursuant to that agreement is just as valid and binding as one obtained after personal service. It is this latter proposition that is controlling here. This rule is summarized in 21 CJS 133, Courts § 85c (1940), as follows:
"In the absence of contrary statute, a court having jurisdiction of the subject matter may, as a general rule, acquire jurisdiction over the persons of the parties by their consent.
"It is well established, as a general rule, that where the court has jurisdiction of the subject matter or cause of action, jurisdiction over the persons of the parties may be conferred by consent, as where defendant has voluntarily submitted to the jurisdiction of the court [numerous cases cited in omitted footnotes]. Accordingly, express or implied consent of the parties to the jurisdiction of the court may operate to cure defects of jurisdic*148tion arising from irregularities in the commencement of the proceedings, defective process, or even the absence of process.* * *”
The same rule is found in 20 Am Jur2d 488, Courts § 139 (1965), as follows:
"* * * [Although jurisdiction over the subject matter generally cannot be affected by agreement or consent, in civil cases, at least, a court’s jurisdiction over the parties or one of them may arise from voluntary submission by agreement or consent. * * *”
The paternity agreement and stipulation to entry of an order in the instant case are in substance a contract of record made by the parties and approved by the court. See, ORS 109.155. This procedure is sometimes termed a "consent judgment” or "judgment by agreement,” and is to be distinguished from a judgment by confession or default.1 The distinctive nature of a "consent judgment” was discussed by our Supreme Court in the early case of Stites v. McGee, 37 Or 574, 61 P 1129 (1900). In Stites the issue was the power of the trial court under what is now ORS 18.1602 to vacate a consent decree after the expiration of the term during which it had been rendered. The court, in the course of holding that the trial court had no power to set aside the consent decree, declared:
"* * * [A] consent decree is not, in a strict legal sense, a judicial sentence or judgment of the court, but is in the nature of a solemn contract between the parties. *149When a decree is made by the consent of the parties, the court does not inquire into the merits or equities of the case. The only questions to be determined by it are whether the parties are capable of binding themselves by consent, and have actually done so. These two facts appearing, the court orders a decree to be entered, and when thus entered, showing on its face that it is by consent, it is absolutely conclusive upon the consenting parties. It cannot be amended or varied in any way without the consent of all the parties affected by it; nor can it be reheard, vacated, or set aside by the court rendering it, especially after the expiration of the term; nor can it be appealed from or reviewed upon a writ of error. The only way it can be attacked or impeached after the expiration of the term, whatever the rule may be during the term, is by an original bill, on the ground of fraud or mutual mistake * * 37 Or at 576-77.
The power of the court to enter judgment by consent is dependent upon the existence of actual consent of the parties at the time the agreement receives the sanction of the court, or is rendered and promulgated as a judgment. Van Donselaar v. Van Donselaar, 249 Iowa 504, 87 NW2d 311 (1958). Accord: Bohlman v. Big River Oil Company, 124 NW2d 835 (ND 1963); Farr v. McKinzie, 477 SW2d 672 (Tex Civ App 1972).
In this state, under ORS 109.165, the court is given the express power to "set aside, alter or modify” a filiation support decree.3
I am not persuaded by defendant’s argument that the challenged order was and is null and void because he was not served with a summons and therefore the court had no personal jurisdiction over him, citing *150Pennoyer v. Neff 95 US 714, 24 L Ed 565 (1878), and subsequent cases.
While a putative father is entitled to adequate and timely notice and an opportunity to defend in filiation proceedings, where a defendant agrees to a consent judgment he submits himself to the jurisdiction of the court and waives any requirement of notice and hearing. The fact that the paternity agreement and stipulation at bar were signed prior to the filing of the complaint in district court under ORS 109.125 et seq would not invalidate such agreement so long as there was actual consent of both persons in existence at the time the settlement was approved by the court. See, Van Donselaar v. Van Donselaar; Bohlman v. Big River Oil Company; Farr v. McKinzie, all supra. The law looks with favor upon compromise and settlement of controversies between parties.4 Where a settlement is fairly entered into, in the absence of fraud, duress, undue influence, showing that the consent of one of the parties was not freely and voluntarily given, it is conclusive on the rights of the parties to such settlement, Stites v. McGee, supra, subject of course to being set aside, altered or modified pursuant to ORS 109.165.5
For the above reasons I respectfully dissent.6
This distinction is expressed in 49 CJS 268, 269, Judgments § 134 (1947), as follows:
"A judgment by consent is distinguished from a judgment by confession, in that its special characteristic is the settlement between the parties of the terms, amount, or conditions of the judgment to be rendered; the first presupposes an agreement of the parties as a basis for it, and the latter an act of defendant alone. They also differ in that the court exercises a certain amount of supervision over the entry of judgments by confession, and equitable jurisdiction over their subsequent status.”
ORS 18.160 provides:
"The court may, in its discretion, and upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, decree, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.”
ORS 109.165 provides:
"Upon motion of either party the court may set aside, alter or modify so much of the decree as may provide for the support of the minor child or child attending school. As to any instalment or payment of money which has accrued up to the time either party files a motion to set aside, alter or modify the decree, the decree is final and the court does not have power to change it. A child attending school is a party for purposes of this section.” Enacted by Oregon Laws 1969, ch 619, § 6; amended by Oregon Laws 1973, ch 827, § 12i.
The courts have held that public policy does not require the institution of filiation proceedings before a settlement can be made and the proceedings compromised. Beattie v. Traynor, 114 Vt 238, 42 A2d 435, 159 ALR 1399 (1945). Accord: Dannells v. U. S. National Bank, 172 Or 213, 138 P2d 220 (1943).
For a recent analysis of our filiation statutes, see, Fox v. Hohenshelt, 19 Or App 617, 528 P2d 1376 (1974).
Tt should also be noted that the consequences of today’s decision relieving defendant of liability for child support may well go beyond the instant case. We are apparently dealing with an operating procedure in welfare paternity cases which has been followed by the state since at least 1969, judging from the printed forms used here. Presumably all similar decrees are now to be deemed null and void likewise.