Rostrup v. Rostrup

DUFO'UR, J. The appellant, adjudicatee at partition sale, was made respondent in a rule to show cause why the property should not be sold a la folie endúre because of her failure to comply with the adjudication. A motion to dismiss is made on two grounds; 1st. That the judgment is a consent one from which no appeal lies, Slid, That it does not work irreparable injury. The judgment recites that it was rendered “considering the consent of all parties in interest,” but does not recite the presence of the appellant or he.r counsel at the trial, and no written, consent is apparent. An assignment of errors presents questions as to the legality of the judgment on the face of the papers, and proper decision of the issues would require an examination of the whole record. Under such circumstances, the .proper practice is to deny the motion to dismiss in limine without prejudice to appellee’s right *233 to urge same at the hearing of the cause on the merits. January 23rd, 1905. Á consent for judgment may he either written or Verbal, and, if written, the instrument should form part of the record and the judgment should re'cite that the consent was so made; i'f verbal, it should he made “in open Court,” and the omission so to state in the judgment strikes it with nullity. Motion denied without prejudice.