Syme v. . Trice

Feb 5, 1887

Versions:96 N.C. 243

1 S.E. 480

Merrimon, J.,

(after stating the facts). The counsel for the appellees insisted on the argument before us, that the special proceeding having been determined — completely ended — a motion could not be made in the proceeding to set the judgment aside for irregularity, and that the proper and only remedy in such case must be by a new and independent action. This is a misapprehension of the law. It is well settled practice, to move in the action or proceeding to set aside a judgment in it, made because of irregularity, and this is so, whether the irregularity appears upon the face of the record or not. It is otherwise, however, when the judgment is attacked for fraud. This must be done by a new action, if the action in which the judgment complained of was granted is at an end. Keaton v. Banks, 10 Ired., 381; Vass v. Building Association, 91 N. C, 55; Williamson v. Hartman, 92 N. C., 236; Fowler v. Poor, 93 N. C,, 466. Upon what ground the Court denied the motion of the appellants, does not appear. Grounds of error are not assigned with precision. Particularly, it does not appear that it held that a remedy could not be had by a motion in the proceeding. It must, therefore, be taken that the motion was disposed of upon its merits, and so accepting the fact to be, we concur in the order denying it.

The appellant Martha Burgess was of age, and in pursuance of the order of the Court, duly served with process. The Court thereupon obtained jurisdiction of her — she was before it, cognizant of all that was done in the course of the proceeding, including the orders and judgments complained of — allowed the land to be sold — the sale to be confirmed *246 and made no objection until after the lapse of more than three and a half years, and at last, she does not allege that she has suffered substantial, or indeed any injury. Most clearly her motion appears to be without merit.

Nor ought the motion as to Joseph J. Williams to be allowed. It did not appear that he was an infant at the time he was made a party to the proceeding and served with process — at that time he was quite a young man, eighteen years of age, and his mother was his co-defendant, served with process, and ought to have cared for his interests. That he was an infant served with process, did not render the judgment as to him void; at most it was only irregular and voidable. England v. Garner, 90 N. C., 197; and the cases there cited; Turner v. Douglas, 72 N. C., 127. While the Court will always be careful of the rights of infants, it will not, in all cases, set aside irregular judgments against them as of course; it will not do so where it appears from the record, or otherwise, that the infant suffered no substantial injustice, especially it will not when the rights of third parties without notice have supervened. Morriss v. Gentry, 89 N. C., 248; Williamson v. Hartman, supra; Hare v. Holloman, 94 N. C., 14. That there were other infant defendants that might have made like motions in the proceeding mentioned, cannot help the applicants. So far as appears, they had no authority to represent their co-defendants, and besides, the counsel of the latter withdrew his motion and all objection in their behalf.

No error appears, and the judgment must be affirmed.

No error. Affirmed.