We do not concur in the opinion of the court below. The error seems to have originated in not (383) adverting to the difference between receiving parol testimony to impeach a judgment collaterally and to receiving it on
a motion to vacate it, made in the court where the judgment is. In the former case it is certainly incompetent; in the latter it is competent. Upon the appeal from the judgment of the County to the Superior Court, the trial was to be had in the latter as it was had in the former. And if the evidence offered to his Honor was such as would have been proper in the County Court, it ought to have been admitted by him. In the writ William F. Keaton is called the guardian ad litem of Benjamin, and the record is upon its face regular according to the course of the court. The service of the writ appeared to have been admitted by William F. Keaton; the court must have then considered the infant Benjamin in court. The fact was otherwise. According to the evidence offered, William F. Keaton never was appointed the guardian of the infant, and never consented to be so, and did not defend the action. If this was so, the judgment was inreality irregular, and contrary to the course of the court. If an action had been brought to recover the property sold under it, however, evidence could not have been received to impeach it. It was the judgment of a court having jurisdiction of the matter. But according to the fact, Benjamin F. Keaton was no party to the proceedings either by himself or his guardian. And the judgment is void, for there can be no judgment against a person not in court. White v. Albertson, 13 N.C. 242. The question then presents itself, could the County Court set aside this judgment at a term subsequent to that at which it was rendered, by petition or motion, and receive parol evidence to show the truth of the transaction? It appertains to every court, as a necessary part of its functions, to set aside an irregular judgment. The ends of justice often require it. Bender v. Askew,14 N.C. 152. In that case it is stated by the Court that the power so to do is not confined to the term in which the (384) judgment is rendered. The judgment against Bender was rendered at January Term, 1838, and set aside at August Term, 1839. The first case presenting the question is that of Pearson v. Nesbit, 12 N.C. 135. There the judgment was obtained at Fall Term, 1820, and the motion, on affidavit, not filed until Fall Term, 1827, when the judgment was vacated, because Jesse A. Pearson was both plaintiff and defendant. In Crumpler v. Governor, 12 N.C. 52, a final judgment, obtained at one term of the court, was at a subsequent one, on motion founded on affidavit, set aside for irregularity. In all these cases the motion was made in the court where the judgment was, and directly upon it. Tidd Prac., 614; Bing. on Judgments, 21, 22. It has been insisted, however, that the
original case continued in court two terms before the judgment was entered against Benjamin Keaton, and the court thereby recognized William F. Keaton as his guardian, and Benjamin was in court. For this position the case ofWhite v. Albertson, 14 N.C. 242, was cited. The attempt there was to impeach the judgment collaterally. Judge Henderson put it upon that ground exclusively. It is true that the case was in court the time specified, and the record does speak of William F. Keaton as the guardian of Benjamin. But on motion to vacate the judgment as irregular, the court is not precluded from inquiring into the truth, whether William F. Keaton was the guardian of Benjamin, and whether the latter did appear or not. Bender v. Askew,14 N.C. 152. The vacating such judgments proceeds upon the grounds "that a judgment has been signed upon the record, which was not in fact the judgment of the court, which the court ought not to have given, and which the plaintiff or his attorney knew the court would not give or allow."
The judgment of the Superior Court is reversed and the case remanded.
PER CURIAM. Ordered accordingly.
Cited: Williams v. Beasley, 35 N.C. 114; Dick v. McLaurin, 63 N.C. 186;Mason v. Miles, ib., 565; Cowles v. Hayes, 69 N.C. 410; Harrell v.Peebles, 79 N.C. 30; Monroe v. Whitted, ib., 510; Vick v. Pope, 81 N.C. 27;England v. Garner, 84 N.C. 214; Stradley v. King, ib., 635; Larkinsv. Bullard, 88 N.C. 37; Vass v. B. L. Assn., 91 N.C. 58; Summer v.Sessoms, 94 N.C. 377; Burgess v. Kirby, ib., 579; Syme v. Trice,96 N.C. 245; Whitehurst v. Transportation Co., 109 N.C. 344; Taylorv. Gooch, 110 N.C. 392; Stafford v. Gallops, 123 N.C. 23; Rackley v.Gooch, 110 N.C. 392; Stafford v. Gallops, 123 N.C. 23; Rackleyv. Roberts, 147 N.C. 207.
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