(dissenting). After a careful reading of the majority opinion in this cause and believing that the result is based upon the consideration of issues not decided by the trial court, and upon the improper determination that the consent judgment contained a mutual mistake that was vital to the carrying out of its terms by the plaintiffs, this writer is constrained to respectfully dissent.
Plaintiffs are owners of land in the City of Warren, zoned for multiple-family dwellings since 1967. In July, 1968, plaintiffs submitted for approval a site plan for the construction of some 34 low-rise apartment buildings on this property to defendant, City of Warren Planning and Urban Renewal Com- ■ mission. In November, 1968, plaintiffs filed a complaint for writ of superintending control in Macomb County Circuit Court, alleging that defendant was wrongfully withholding approval of their site plan.
*330A hearing was held hy the court, and the defendant asserted that four of the buildings were situated too close to Mound Road; that the Michigan State Highway Department had proposed to build an expressway over Mound Road and that this proposed expressway had been incorporated into the City of Warren’s master thoroughfare plan. Further, that this improvement would require an additional 200 feet of right-of-way on the west side of Mound Road, and this improvement was scheduled to be commenced in 1971 or 1972. The defendant objected to any action on the part of the plaintiffs that would require the city to pay on condemnation for the cost of these buildings in addition to the land itself. The matter was adjourned for a week for the purpose of the parties getting together and settling their differences. At the end of the week, the plaintiffs and the defendant proffered a judgment to the court for signature. This judgment gave plaintiffs the right to build their low-rise apartment buildings in accordance with plaintiffs’ revised site plan dated January 9, 1969. It permitted plaintiffs to place two of the buildings within the 200 feet, but the other two buildings were to be placed so that they would not need to be condemned when the improvement of Mound Road became necessary.
The plaintiffs proceeded immediately to build and the city inspectors discovered that the setback lines for buildings 1, 2, 3 and 6 were not in accord with the revised site plan, and defendant thereupon filed a petition for the enforcement of the judgment, by injunction. An order to show cause directed to plaintiffs was issued. Plaintiffs filed a petition to modify and clarify the judgment. A lengthy hearing was held in considering the petitions of the parties, and at the conclusion thereof, the trial judge decided the matters before him in a thorough written opin*331ion. Because the learned trial judge’s opinion is consonant with this writer’s ideas of what our decision in this case should be, and because it also determines correctly all issues of fact, it is adopted as a part of this opinion and repeated herein as follows:
“The plaintiffs filed a complaint for writ of superintending control contending that they were land contract vendees of a parcel of land in the City of Warren, on which land they were proposing to construct low-rise apartments, and that they did submit a site plan to the defendant on July 26,1968, for approval; however, the City of Warren Planning and Urban Renewal Commission refused to give such approval. The hearing on order to show cause took place on January 13,1969, in open court. The plaintiffs called Jerome R. Schmeiser, who testified that the site plan, as submitted by the plaintiffs, and the drawing, submitted by the highway department, as presently drawn, indicate that 200 feet of right-of-way would be needed in addition to the 200 foot right-of-way in existence for the proposed construction of a super-expressway on Mound Road; the timetable for acquisition of the 200 foot right-of-way to begin sometime in 1971 or 1972. The testimony is clear that the 200 foot right-of-way would be acquired off the west side of the present Mound Road right-of-way. Assuming that the 200 foot right-of-way was acquired across the front of the project, four buildings as proposed under the plaintiffs’ site plan would be within this proposed right-of-way, each building having eight units and each unit costing, exclusive of land costs, approximately $12,000 to $14,000. The record reflects that inquiry was made into the possibility of relocating the four front buildings in order to reduce further condemnation costs. A question arose whether or not relocating four units would be in violation of the ordinance insofar as it related to density. Keeping in mind that this was a matter in the nature of an equity *332proceeding, an effort was made to have the parties attempt to resolve the problem through negotiation; and the hearing was adjourned for one week to allow the parties an opportunity in attempting to work out a solution. Otherwise, this court indicated that the petitioners’ request would be granted.
“On January 20, 1969, this court signed what is entitled judgment order. In effect, the proper title should have been consent judgment, since this court in no way formulated the judgment or ruled on its contents or ever saw, prior to signing this judgment, the so-called revised site plan dated January 9,1969, which is incorporated as part of the judgment. This judgment order was typed on stationery of plaintiff counsel and submitted and approved by counsel for both plaintiffs and defendants.
“On September 26,1969, the defendant filed a complaint for injunctive relief and an order to show cause why buildings should not be removed from the proposed right-of-way. The sworn complaint, signed by Jerome R. Schmeiser, Director of Planning and Urban Renewal Commission, alleges that on January 20,1969, this court allowed the plaintiffs to build their multifamily project in accordance with plaintiff’s revised site plan dated January 9, 1969. The defendant recites that under the revised site plan of 1/9/69, plaintiffs were to build two apartment buildings each containing eight apartment units, a total of 211 feet from the centerline of Mound Road to the front building line, and that the second tier or [sic] apartment buildings was to be built 280 feet from the existing Mound Road right-of-way. Further, plaintiffs violated the court order by failing to build the brick wall along Beebe Street by allowing an entrance to said project off Beebe Street. It was contended that to allow the plaintiffs to continue to complete the construction of the said apartment buildings, large sums of money will be expended to condemn said buildings when the widening of Mound Road occurs. No answer has been filed to *333this sworn complaint.1 Testimony and arguments in conjunction with the order to show cause and the petition to clarify and modify judgment order was heard over a number of days, the hearing being concluded on Friday, October 10,1969.
“Plaintiffs called Jerome Schmeiser to the stand and his testimony indicated that a stop order has been placed on construction of the four front buildings because all four buildings were being constructed within the proposed right-of-way. The front of buildings numbered 1 and 2 were within 40 feet of the Mound Road right-of-way or 142 feet from the center of Mound Road. The front of buildings numbered 3 and 6 on the north were 184'4" from the Mound Road right-of-way and 195'4" on the south from the Mound Road right-of-way. While acknowledging that the approved site plan of 1/9/69 does have a line running north and south dividing the Mound Road right-of-way to 102 feet to the west of this line and 102 feet to the east of this line, there is also writing along this so-called centerline which reads, ‘east line of Section 5’. This witness acknowledged that it was only recently that he learned that the east line of Section 5 and the so-called centerline of Mound Road are not identical as indicated on the said site plan and that the east line of Section 5 is actually 69 feet to the east of the centerline of the Mound Road right-of-way. All the same, it was this witness’s position that the marking ‘east line of Section 5’ on this site plan had no significance insofar as what was agreed to by both parties and the final resolution by entry of the judgment order together with the incorporated site plan. It was this witness’s position that all parties agreed through the judgment of 1/13/69 that the front of apartments 1 and 2 would be built a distance of 211 feet from the centerline of Mound Road and the front of the *334south tier of apartments 3 and 6 would he at least 240 feet from the most westerly edge of the Mound Road right-of-way.
“Plaintiffs’ Exhibit 1 relates to the minutes of January 6,1969, of the Warren Planning and Urban Renewal Commission at which time the Gordon-Begin apartment development was discussed. It indicates that Director Schmeiser was attempting to work out some plan where the four front buildings of the project could be fit in with the other buildings so there would be a 300-foot setback from Mound Road. Plaintiffs’ Exhibit 2 relates to the Warren Planning and Urban Renewal Commission meeting of January 13, 1969, which meeting was concerned with the revised site plan for the said apartments and after lengthy discussions and presentations by various commission members, Mr. Murray, Mr. McAlpine and Mr. Schmeiser, a motion to approve the revised site plan was made and passed. The commission approved the revised site plan with conditions outline by the director and with an added condition that two buildings in the M-53 right-of-way be moved to the west outside of the right-of-way and the other two buildings to remain in the right-of-way with drawings submitted to the planning commission for future reference. It might be noted that among other conditions recited, a corporate surety bond in the amount of $50,000 was to be posted by the plaintiffs. Plaintiffs’ Exhibit 6 is a letter to Gordon-Begin and Company relating to the site plan and conditions approved by the Planning and Urban Renewal Commission on January 13,1969, which letter is signed by Jerome R. Schmeiser.
“Sentence No. 11 recites that the two buildings in the M-53 right-of-way be moved to the west outside of the right-of-way and the other two buildings to remain in the right-of-way.
“There has been much argument regarding the centerline as indicated in the revised plan of 1/9/69 and the east line of Section 5 as indicated on the *335same plan as not being one and the same. This court finds, as a matter of fact, that while perhaps either counsel in this proceeding or Mr. Schmeiser may not have been aware that the east line of Section 5 was 69 feet to the east of the centerline of Mound Road, there is no question the plaintiffs did have such knowledge. Mr. Donald Geake, landscape architect and city planner, who drew up the proposed apartment layouts knew this to be so. Patrick McPharlin, the person in charge of the plaintiffs’ construction, knew this to be so. An examination of the revised site plan of 1/9/69, the photographs and various exhibits, would bring to the average person at least a question regarding the distance away from the front of buildings 1 and 2 to the west edge of the Mound Road right-of-way.
“Plaintiffs’ Exhibit 11 is a series of building permits relating to this apartment housing project. This court cannot find that there was any unreasonable delay on the part of the city inspectors based on the dates of inspection noted on the building permit that would convince this court that persons in the Division of Building and Safety Engineering should have earlier initiated a stop order of the construction of buildings 1, 2, 3 and 6. As a matter of fact, by not only checking buildings 1 and 2 and 3 and 6 personally but also from the examination of the photographs in plaintiffs’ Exhibit 3, there is an indication that all haste was used to commence the construction of the said buildings 1, 2, 3 and 6.
“Defendants subpoenaed Donald Clayton Geake, a landscape architect and certified city planner, who together with his associates prepared for the plaintiffs various proposed apartment layouts and site plans. He was instructed by plaintiff Begin, prior to January 9, 1969, to meet with Jerome Schmeiser of the planning commission, and was told that certain changes had come about, that there was additional widening to take effect and *336that he was to go out, meet with Mr. Schmeiser, strike his peace with him and whatever Mr. Schmeiser come [sic] np with, the plaintiffs would conform with it.
“After weighing all the proofs including the testimony of the witness Geake, this court rules, as a matter of fact, that apartment buildings 3 and 6 were to be constructed outside of any right-of-way lines, whether state or city or whatever. The facts established that the front of apartment buildings 3 and 6 were to be at least 240 feet west of the most westerly edge of the Mound Road right-of-way with an additional distance of 102 feet being from the most westerly edge of the Mound Road right-of-way to the center of Mound Road.
“No purpose could he served at this time to discuss the efforts which have been made by counsel for the plaintiffs in attempting to argue that the judgment entered by consent on January 20, 1969, was other than a consent judgment. The plaintiffs implore that equity should come to their aid because apartment buildings 1 and 2 are more than 50 percent completed and to order them torn down would cause financial hardship. Time will tell whether plaintiffs themselves will be willing to dispense equity. Equity is not only on the side of the plaintiffs. Had a judgment been entered on a final determination by this court favorable to the plaintiffs, the defendant may have very well been entitled, prior to entry of judgment, to some type of equitable relief, least of which would be the posting of a corporate surety bond as a condition of the site plan approval by the Warren Planning and Urban Renewal Commission on January 13, 1969. Certainly, the defendant would have the right to follow appeal procedure if the decision had been favorable.
“This is a most difficult decision. However, after a great deal of study and deliberation, the following is ordered. In addition to all the applicable *337pertinent codes and ordinances which shall continue to apply, the plaintiffs are to post a corporate surety bond in the amount of $50,000 assuring the city that the property will he developed in accordance with the approved site plan, elevations submitted and this determination. Further, the plaintiffs are to take immediate steps to remove buildings 3 and 6. After the plaintiffs comply with the above rulings, the plaintiffs may proceed to construct and complete buildings 1 and 2.” (Emphasis supplied.)
The “judgment order” was properly construed by the trial court to he a consent judgment, under the facts in this case.
“A judgment by consent of the parties is a judgment the provisions and terms of which are settled and agreed to by the parties to the action in which it is entered, and which is entered of record by the consent and sanction of the court; * * * .” 49 CJS, Judgments, § 173, p 308.
The trial judge also correctly determined that the error on the revised site plan which placed the east line of Section 5 in the same position as the center line of Mound Road rather than correctly placing it 69 feet east of the center line of Mound Road, was not a mistake of substance. The error was not vital nor did it in any manner prevent the plaintiffs from carrying out the terms of the revised site plan. The revised site plan called for buildings 1 and 2 to be constructed 109 feet from the west edge of the existing Mound Road right-of-way; buildings 3 and 6 were to be constructed 253 and 264 feet respectively, from the west edge of Mound Road right-of-way. Everyone knew where the west edge of the right-of-way of Mound Road was located. It was there to he seen and it could not be mistaken. Contrary to the terms of the revised site plan, *338plaintiffs placed buildings 1 and 2 142 feet west of the Mound Road right-of-way and buildings 3 and 6 were placed 184 and 195 feet respectively from the western edge of the existing Mound Road right-of-way. The mistake that plaintiffs rely on, i.e., the placing on the revised site plan of the east side line of Section 5 and the center line of Mound Road in the same position was not a material mistake and did not justify the plaintiffs in relying upon it. The plaintiffs and their agents knew that the east side of Section 5 was 69 feet east of the center line of Mound Road. A mistake, in order to justify a setting aside or reformation of a consent judgment, must go to the substance of the judgment and agreement upon which it was based. Stevenson v. Aalto (1952), 333 Mich 582. It is perfectly clear that the location of the east boundary of Section 5, which was erroneously marked on the agreed-upon revised site plan, was tangential to the real substance of the revised site plan. The substance of the agreement in order to comply with the revised site plan was to locate the apartment buildings in relation to the Mound Road right-of-way. The boundaries of Section 5 were of no importance or at most of secondary importance. See Harris v. Axline (1949), 323 Mich 585.
In 1 Michigan Law & Practice, Appeal, § 42, p 538 it is stated in part as follows:
“Generally, a judgment entered by consent may not be complained of on appeal by the parties thereto, and an appeal from such judgment will be dismissed on motion. Such a judgment, entered on the agreement of the parties, is binding, and in the absence of a claim that consent to the judgment was not voluntarily given, or resulted from mistake, fraud or misrepresentation, the judgment may not be attacked on appeal.”
*339In the instant case, the last judgment did in effect provide for the carrying out of the terms of the original consent judgment and it therefore stands in the same position as the original consent judgment as far as this appeal is concerned. Dora v. Lesinski (1958), 351 Mich 579. See also, Cameron v. Smith (1912), 171 Mich 333, 334; Sauer v. Rhoades (1954), 338 Mich 679; and Knowlton v. City of Port Huron (1959), 355 Mich 448, 456.
This writer has noted that the writer of the majority opinion has made reference to many figures in determining that there was a mutual mistake. A large number of reference figures does cause one to he confused but fails when it comes to convincing. If plaintiffs had placed apartment buildings 3 and 6 at least 240 feet from the right-of-way of Mound Road as the revised site plan required, the difficulty encountered in this cause would never have occurred. The trial judge in his deliberate and very careful manner correctly stated the facts in his opinion which fully justifies his determination of the matter.
The issue raised by plaintiffs to the effect that defendant did not have the legal right to prevent plaintiffs from developing their land within a proposed future right-of-way, is not properly before this Court. The original judgment being a consent judgment, it is inappropriate for this Court to consider this issue. The issue was not decided by the court below. This Court should only consider the consequences of plaintiffs’ breach of the consent judgment since such breach constituted the subject matter of the proceedings from which this appeal is taken.
The other issue raised by plaintiffs poses the question of whether the trial court’s order was a proper exercise of judicial discretion. The parties *340agreed in the consent judgment that two of plaintiffs’ buildings were to be located in the path of the future freeway and two outside of this area. Due to plaintiffs’ failure to follow the revised site plan all four buildings were located within the proposed freeway right-of-way. The trial court felt that plaintiffs should bear the costs of their own carelessness but should be permitted to retain the two buildings which the consent judgment permitted them to place in the area in question. It was simply a carrying out of the terms of the original agreement as incorporated in the consent judgment.
For the reasons herein stated the judgment of the trial court should be affirmed with costs to the defendant.
“Plaintiffs’ answer to defendant’s complaint for preliminary injunctive relief * * * was handed directly to the judge and not submitted to the clerk for filing directly.”