The opinion
BeqwN, J.,
dissenting: I regret I cannot agree to the con- • elusion of my brethren. I will state the case as I understand it.
This is a motion made by plaintiff to set aside a verdict and judgment rendered at the Fall Term, 1912-, by Lane, judge of the Superior Court of Hyde County, in favor of the plaintiff against the defendant, and on the ground of excusable neglect.
*56 The motion was made before Whedbee, judge, Spring Term, 1913, and based upon the affidavit of H. S. Ward, the allegations of which were controverted in an affidavit by the defendant.
The complaint reads as follows:
Plaintiffs complain of defendants and allege:
1. That the plaintiff B. B. Sanderson, on the.day of ., 1881, conveyed a five-sixteenth (5-16) undivided interest in the land hereinafter described, then being the owner of same in fee simple, to one Josephine Jones, née Sanderson.
2. That said Josephine Jones died intestate and without lineal descendants surviving.
3. That the plaintiffs are. the owners of said five-sixteenth (5-16) interest in said land, referred .to in section 1, aforesaid, and defined and described as follows:
Lying in Hyde County, bounded on the north by the lands of Charlie Jennette, on the east by the Pamlico Sound, and the south by the lands of the heirs of R. E. Carter, and on the west by the public road from Engelhard to Middletown.
4. That defendants are in the possession of the entire tract and assert title to same, including the five-sixteenth (5-16) interest, adversely to the title of the plaintiffs, and refuse plaintiffs the right of possession.
5. That the annual rental Value of said land is $.
Wherefore, plaintiffs pray judgment that they be adjudged the owners of the five-sixteenth (5-16) interest in said land, and that they be let in possession of same, and for $.for rents, and for costs and general relief.
Wabd & Griices,
Attorneys for Plaintiffs.
This complaint is duly verified.
The " defendants answered under oath, denying the several allegations of the complaint alleging title in plaintiff, and admitting possession of the land described in the complaint.
Upon such pleadings, these issues were submitted by consent as the issues raised by the pleadings:
*57 Are the plaintiffs owners of an undivided five-sixteenth interest as tenants in common with defendants in that part of land described in complaint conveyed by W. H. Jones to J. M. Hall? Answer: Yes.
Are plaintiffs owners of an undivided five-sixteenth interest as tenants in common with defendants in that part of land described in complaint, conveyed by W. H. Jones to Eedmond Turner? Answer: Yes. -
Are plaintiffs owners of an undivided five-sixteenth interest as tenants in common with defendants in that part of land described in complaint, conveyed by W. H. Jones to Eedmond Turner? Answer: Yes.
Are plaintiffs owners of an undivided five-sixteenth interest as tenants in common with defendants in that part of land described in complaint, conveyed 'by W. H. Jones to heirs of Arnold Whitfield? Answer: Yes.
Do defendants, according to their respective interests,- own the other elevemsixteenths of said pieces of land? Answer: Yes.
Upon those issues this judgment was rendered upon motion of Ward & Grimes, plaintiffs’ attorneys:
Present: Hon. Henry P. Lane, judge presiding.
This cause coming on for trial at this term, and the jury having answered the issues as appears in the record, it is on motion of Ward & Grimes, counsel for plaintiffs, ordered, adjudged, and decreed that the plaintiffs are the owners of a five-sixteenth undivided interest in the lands described in the complaint, as tenants in common with defendants, who, according to their respective interests, 'own the other eleven-sixteenths, plaintiffs’ interest in said five-sixteenths being as follows:
B. B. Sanderson, one-half thereof; T. 0. Mann, one-tenth thereof; J. E. Mann, one-eighteenth thereof; Preston Gibbs, Seth Gibbs, Ella G. and Florence O’Neal, one-tenth; Carroll Mann and Clyde Wade, one-tenth; Mary Carter, Isabelle Carter, D. M. Carter, Jr., John Carter, and Eufus Carter, one-tenth.
*58 (Then follows a clause appointing H. S. Ward, commissioner to sell the land described in the complaint, and by consent the motion to confirm report of sale may be heard at chambers, and — ) It is adjudged that plaintiffs recover the costs of this action up to and including recording this judgment. It is further adjudged that plaintiffs recover of defendant J. M. Hall, $12.50; of defendant Riley Midgette, $62.50; of the other defendant, $19.74.
FWv P. Lane,
Judge Presiding.'
It must be admitted that the plaintiff obtained a sweeping victory, and recovered • judgment against the defendants for every foot of land and every dollar he claimed.
I have stated this case very fully, so it can be seen how extraordinary this proceeding'is, and how utterly destructive of •all stability in judicial procedure it will be if established as a precedent.
The ground -upon which the plaintiff bases his motion is, that in drawing the complaint in the case his attorney -did not claim enough. This 'is undoubtedly a very novel and unusual accusation to make agaitíst a member of our profession; but whose fault was it that he did not claim enough? It was either the fault of the attorney or of the client (it is immaterial which) that they did not describe the entire,land conveyed by Jones to the defendants.
The affidavit states:
“This -affiant all the time believed he had described in his complaint the entire original Sanderson tract, and did not know he had described only the tract conveyed-by Jones to the defendants. That he was entitled to recover the land described in his complaint, and not a five-sixteenths (5-16) interest therein; and this he is informed and believes the defendants knew at the time he wrote the judgment.
“That he saw the defendant Hall smiling at his attorney when the judgment was written and read, and did not know the meaning of it, and by reason of his mistake in drawing the judgment and in thinking that his complaint described the en *59 tire Sanderson tract, as aforesaid, lie bas failed to have 'his. clients adjudged the owner of the eleven-sixteenths (11-16) interest to which they are as justly entitled as to the five-sixteenths (5-16) interest recovered.
“That the said judgment is erroneous by reason of the mistake of the draftsman and the mistake of 33. B. Sanderson, who, as above stated, was all the time referring - to the land as a ,.five-sixteenths (5-16) interest.”
It is true that if the judgment did not conform to the pleadings and issues, it could be corrected as an irregular judgment, but it is a carefully drawn decree and conforms closely to the pleadings and issues.
It is unnecessary to consider the question as to whether there is any excusable neglect shown in. the affidavit. In my view, the statute does not cover the case, and it must be admitted that words should not be read into the statute to make it cover it.
The language of of the statute is as follows:
Revisal, 513. “Mistake, Surprise, Excusable Neglect. The judge shall, upon such terms as may be just, at any time within one year after notice thereof, relieve a party from a judgment, order, verdict, or other proceeding taken against him through mistake, inadvertence, surprise,- or excusable neglect, and may supply an omission in any proceeding.”
The decisions under this section are too numerous to cite, but they all agree that the only party who can avail himself of such relief under the section must be one against whom a judgment is rendered, and no party who has had a trial in court and recovered all he claimed can appeal to this section because he did not claim enough.
The decisions are collected in Pell’s Revisal, 513.
Prior to the amendment of the statute as now contained in Revisal, sec. 513, it was held that the statute applied only to judgments by. default, and then only for the relief of a defendant against whom judgment had been taken, and that the statute did not apply to a judgment rendered conformable to a ver- *60 diet. Morrison v. McDonald, 113 N. C., 327 ; Brown v. Rhinehart, 112 N. C., 772 ; Beck v. Bellamy, 93 N. C., 129 ; Clemmons v. Field, 99 N. C., 400 .
Afterwards, tbe statute was amended so as to relieve tbe party from “a judgment, order, verdict, or other proceeding” as now set out in Revisal, 513; but tbe words, “taken against him through bis mistake, surprise, or excusable, neglect,” are now, and always have been, in tbe statute since it was first enacted. Code, sec. 274; Acts 1893, ch. 8; C. C. P., sec. 133.
In this case, as appears from tbe record, no judgment or verdict has ever been rendered against tbe plaintiffs. Tbe issues were formulated and submitted at instance of plaintiffs’ counsel, tbe verdict on each issue was in favor of tbe plaintiff, tbe judgment was drawn by plaintiff’s counsel and entered up as 'the court’s decree upon their motion.
It is well settled that “a judgment entered by consent of counsel of record in a matter coming within tbe scope of bis au: thority is regular and binding on tbe client, and will not be set aside on tbe ground of excusable neglect.” Hairston v. Garwood, 123 N. C., 345 ; Westhall v. Hoyle, 141 N. C., 338 ; Harrill v. R. R., 144 N. C., 544 .
Tbe judgment in this case is neither an irregular nor an erroneous judgment. It was rendéred. after a trial, upon tbe verdict and pleadings, and is strictly conformable to both. It cannot be set aside under this statute. May v. Lumber Co., 119 N. C., 97 .
Had it been an erroneous judgment, and rendered for too much or too little, but according to tbe course of tbe court, tbe only remedy is by appeal. Wolfe v. Davis, 74 N. C., 597 .
So far as tbe plaintiff is concerned, this is a consent judgment, as it was entered upon bis motion and at bis request. Therefore, it cannot be set aside except for fraud, or tbe mistake of both parties, and then only by a civil action brought for tbe purpose, except in a partition proceeding it may be done by petition in tbe cause; but that does not change tbe elementary principles governing such cases. Vaughan v. Gooch, 92 N. C., 524 ; Kerchner v. McEachern, 93 N. C., 447 .
*61 This subject is forcibly discussed by Justice Reade in Simmons v. Dowd, 77 N. C., 156 , in a case practically on all-fours with this, in which he says:
“The motion of defendant, and the action of the court below, were evidently based upon the idea that C. O. P., sec. 133, now Bevisal, 513, applied to the • case ;• but was a mistake. . . .
It is common learning that all judgments and proceedings of the court are in the breast of the court during the term, and may be vacated and amended in any way; but after the term-closes, they are sealed forever.
“This applies to all proceedings of the court which are regular and according to the course and practice of the court, however erroneous the same may be. And note, that an erroneous judgment'may be just as regular as one which is free from error.
“If I sue a man and recover $100, my judgment is regular. If I ought to have recovered $200, or ought to have recovered only $50, my judgment for $100 is erroneous, but still it is regular. And after the term of the court when it is rendered, I cannot have it increased, and the defendant cannot have it diminished. If this were not so, there would be no end to litigation.”
MR. Justice "Waleer concurs in this dissenting opinion.