Ring v. . Whitman, 140 S.E. 159

Ring v. . Whitman

140 S.E. 159 | N.C. | 1927

In a Circuit Court held for Grayson County, Virginia, in 1925, the plaintiffs recovered a judgment against the defendant for $842.42 with interest thereon at 6 per cent from 27 July, 1922, and on 10 March, 1927, they brought suit against the defendant on this judgment in the Forsyth County Court. No answer was filed, and on 25 April, 1927, the clerk gave judgment by default final. On 21 May, 1927, the judge of the county court set aside the clerk's judgment on the ground of excusable neglect. The plaintiffs excepted and appealed to the Superior Court and the judgment of the county court was reversed. The defendant excepted and appealed for alleged errors referred to in the opinion. The Federal Constitution provides that full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. Const., Art. IV, sec. 1. But this provision does not prevent an inquiry whether the judgment sued on is impeachable for fraud.Cole v. Cunningham, 133 U.S. 112, 33 Law Ed., 538; Mottu v. Davis,151 N.C. 237. The appellant alleges that the action in the Virginia Court was fraudulent because it was brought "in a form and manner to obtain judgment by default against defendant although there were no facts to warrant any such action." This is tantamount to an allegation that the judgment rendered in Virginia was erroneous in law; but it was held inFauntleroy v. Lum, 210 U.S. 230, 52 Law Ed., 1039, that a judgment cannot be impeached by showing that it was based on an error of law. And in Williamson v. Jerome, 169 N.C. 215, it is said: "The courts of this State will not vacate or enjoin a judgment merely based upon a cause of action, which may be vitiated by fraud, for this is a valid defense which may be interposed at the trial; and unless its interposition is prevented by the fraud of the adversary, it cannot be asserted against a judgment either foreign or domestic. Black on Judgments, sec. 919, and cases there cited." The defendant had been personally served with summons and was given every opportunity to present to the Circuit Court of Grayson County the defense he now seeks to interpose.

This principle applies also to his contention that he has a valid counterclaim to the cause of action and that no copy of the account was served on him as required by section 6132 of the Code of Virginia. It may be said in addition that as we understand the declaration the action was laid in assumpsit to which the succeeding section would apply. *546

The appellant further relies on an inquisition of lunacy under which he was committed to the hospital in Morganton. The record shows that the inquisition was made in June, 1923, and that the defendant was discharged on 8 August, 1924. He was personally served with summons in the present action on 10 March, 1927, and employed an attorney; but the attorney filed no answer because in his opinion the appellant did not have "a leg to stand on." Judgment

Affirmed.