Howard v. Boyce

255 N.C. 712 | N.C. | 1961

RodmaN, J.

Appellant has made no motion to vacate the judgment rendered in 1945, nor have any parties named as plaintiffs made such a motion except movants Penelope Overton and Alexander Badham. The only parties before the court seeking an adjudication of their rights at the May 1961 Term were movants Overton, Badham, and respondent Boyce. Their appearance, voluntary or by process duly issued and served, authorized the court to determine their rights inter se. The court had no power to declare or deny a right to one not seeking a determination of his rights. Howard v. Boyce, supra; Peel v. Moore, 244 N.C. 512, 94 S.E. 2d 491; Coach Co. v. Burrell, 241 N.C. 432, 85 S.E. 2d 688; Powell v. Turpin, 224 N.C. 67, 29 S.E. 2d 26; Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223; Allred v. Smith, 135 N.C. 443; Loven v. Parson, 127 N.C. 301; Falls v. Gamble, 66 N.C. 455.

The court, on the findings made, correctly adjudged that the judgment rendered in 1945 was not binding on movants Overton and Badham. That was the only question it was called upon to decide. It exceeded its jurisdiction by adjudging rights of parties not before it and not seeking its aid.

The cause is remanded to the Superior Court of Chowan County with instructions to modify and correct Judge Parker’s judgment to conform to this opinion.

Remanded for modification.