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First National State Bank of N.J. v. Gray

Decided: March 1, 1989.

FIRST NATIONAL STATE BANK OF N.J. N/K/A FIRST FIDELITY BANK NA NJ, PLAINTIFF,
v.
RICHARD GRAY AND GLORIA GRAY, HIS WIFE, DEFENDANTS



Coburn, J.s.c.

Coburn

This matter came before me on plaintiff's ex parte submission of a single document entitled "Consent Order to Enter Judgment." This proposed consent judgment contains what purports to be defendant Richard Gray's signature sworn to and subscribed before a notary public of the State of New Jersey. The question presented is whether this private settlement between plaintiff's attorney and the unrepresented defendant has been properly brought before the court. I will not sign the proposed judgment since I find the submission to be unauthorized by the court rules, inconsistent with the common law, and an open invitation to oppression.

Before discussing the law, it would appear worthwhile to note certain information not made available to the court as a result of plaintiff's approach: the nature of the civil action; the basis for jurisdiction; the process, if any, employed; whether defendant is a minor or an incompetent; the method by which damages were calculated; whether the judgment has been consented to with fraudulent intent or to protect the property of defendant from his creditors; the circumstances under which

defendant's consent was obtained; and whether defendant has appeared in the action.

Turning to the court rules, I find that the issue of "appearance" in the action is the first hurdle plaintiff has failed to overcome. R. 4:5-1 lists the kinds of initial pleadings permitted for each party and provides that "(n)o other pleading is allowed." A consent judgment is not within the list. Although, R. 4:4-6 permits a party who is a competent adult to appear by signing and filing a "general appearance or an acceptance of the service of a summons," the document submitted in this case does not even purport to be either of those pleadings. Consequently, defendant has not yet "appeared" in the action so as to place him "under the control of the court" and "subject to appropriate disciplinary action," as is required by R. 1:21-1(b).

The only pertinent reference to consent judgments appears in R. 4:42-1(b), (c) and (d). Subsection (b) allows a party to sign a consent judgment, but, in so doing, it is clearly referring to a party who has appeared in the action. If construed otherwise, then under subsection (d), plaintiff's counsel could have obtained judgment in this case by including in the document a mere "recital that all parties have in fact consented to the entry of the judgment." R. 4:42-1(d). That approach would make the oppressiveness of the pre-1969 judgment-by-confession law seem innocuous by comparison. See Pressler, Current N.J. Court Rules, Comment R. 4:45.

This opinion would be pointless if the matter were permitted to turn on the absence of an answer, general appearance, or acknowledgement of service of process since I must assume that a defendant's signature certainly could be obtained by a plaintiff on such documents with no more trouble than a signature on a consent judgment. The important question concerns what proofs a court should require before permitting a private agreement between competent adults to become its judgment.

A consent judgment has been properly described as a "contract entered into with the solemn sanction of the court." Stonehurst at Freehold v. Tp. Comm., Tp. Freehold, 139 N.J. Super. 311, 313 (Law Div.1976); emphasis supplied. Its adjudicative effect is the same as that of a judgment entered after trial or on motion. Pope v. Kingsley, 40 N.J. 168, 173 (1963). However, entry of a consent judgment is inappropriate and the judgment itself is unenforceable when the agreement it encompasses or the relief it grants is illegal. Stonehurst at Freehold, supra; Midtown Properties, Inc. v. Madison Tp., 68 N.J. Super. 197, 206-208 (Law Div.1961). Furthermore, as the court observed in Kupper v. Barger, 33 N.J. Super. 491 (App.Div.1955), "stipulations (of settlement) and their enforcement are subject to the sound discretion and control of the court." Id. at 494.

Because of the dearth of information resulting from the unauthorized mode of proceeding selected by plaintiff, I can find no basis for the exercise of discretion in a manner that could be fairly deemed sound. A consent judgment is not a mere authentication or recording of the parties' agreement. It is a solemn judicial act. Cast Optics v. Textile Workers Union of America, 117 N.J. Super. 530, 540 (App.Div.1971). Plaintiff's approach may well be described in the same words used by Chief Justice Kirkpatrick 165 years ago to point up the then existing defects in the procedures permitting entry of judgments by confession upon an attorney's bond and warrant. He said: "(T)he method in which they are entered is the loosest way of binding a man's property that ever was devised in any civilized country." Diament v. Alderman, 7 N.J.L. 197, 198 (Sup.Ct.1824). Under modern practice, a judgment by confession may only be obtained pursuant to an exacting procedure. R. 4:45-2 provides:

No judgment shall be entered on warrant of attorney in any action on a bond or other instrument for the payment of money, except on motion after notice to the defendant served in lieu of summons in accordance with R. 4:4-4 or by registered or ...


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