Carter v. Rountree

• Decision Date: 13 October 1891
• Citation: 13 S.E. 716,109 N.C. 29
• Parties: Carter v. Rountree et al.
• Court: North Carolina Supreme Court

13 S.E. 716

109 N.C. 29

Carter v. Rountree et al.

Supreme Court of North Carolina

October 13, 1891

Appeal from superior court, Hertford county; Henry R. Bryan, Judge.

This is a motion in a special proceeding, by J. E. Carter administrator, against A. J. Rountree and another, to set aside, for alleged irregularity and fraud, the orders directing a sale of the land therein specified, to make assets to pay debts of a testator, the proceeding having been determined before the motion was made. The court heard the motion, and gave judgment setting the orders complained of aside. The plaintiff and defendants filed affidavits in support of and against the motion, but it does not appear affirmatively that the court found the facts or based its judgment upon any finding of fact. The appellants assigned as error-First, that a motion in the cause was not a proper remedy; secondly, that the court failed to find the facts on which its judgment was based. Reversed.

In the absence of a special request for a finding on a material issue in a case, it is not error for the court to fail to make such finding.

R. B Peebles, for appellants.

B. B Winborne, for appellee.

Merrimon C.J.,

A motion in the cause is the proper remedy, whether the action be ended or not, for mere irregularities in the course of the action, and it may be made at any time within a reasonable period. This is settled by many decisions of this court. Williamson v. Hartman, 92 N.C. 239; Fowler v Poor, 93 N.C. 466; Morris v. White, 96 N.C. 93, 2 S.E. Rep. 254; Syme v. Trice, 96 N.C. 243, 1 S.E. Rep. 480; Smith v. Fort, 105 N.C. 452, 10 S.E. Rep. 914; McLaurin v. McLaurin, 106 N.C. 331, 10 S.E. Rep. 1056; and there are other cases. It is as well settled that, pending an action before the final judgment, an interlocutory order or judgment may be attacked for fraud by a motion or proceeding in the action; but after the final judgment the remedy for fraud is by an independent action brought for the purpose. See the cases cited supra, and other cases cited in Seymour's Digest, (7th Ed.) p. 281 et seq. The motion in this case is made in the form of a petition setting forth specifically the grounds thereof. The form does not change or at all affect its nature and purpose. Indeed, in some cases of complication it would be well to specify and set forth the grounds thereof The motion is summary, and to specify the grounds would give it greater certainty, and render it more intelligible. As to the alleged irregularities complained of here, the motion in the proceeding is the appropriate and proper remedy. Inasmuch as the proceeding is ended, as to the alleged fraud, the remedy is not by such motion, but by an independent action, as clearly pointed out in the cases cited supra. The motion need not fail, however, because of the allegations of fraud. These may be treated as surplusage and it may be upheld as sufficient as to the alleged irregularities.

It does not appear from the record that the court below found the facts from the evidence submitted to it in support of and against the motion. It may have done so, and probably did, without setting forth its findings in the record. It was competent for it to omit entering them, unless it had been requested by a party to so set them forth, so as to enable the party to take exception with a view to an appeal to this court. In such case it would be the duty of the court to comply with the request, and to refuse to do so would be error. Millhiser v. Balsley, 106 N.C. 433, 11 S.E. Rep. 314; Holden v. Purefoy, 108 N.C. 163, 12 S.E. Rep. 848. It does not appear affirmatively that the court failed to find the facts, nor did the appellants request it to enter its findings on the record. The second exception cannot, therefore, be sustained.

It is our duty, however, to look through the record proper, and to see whether it warrants the judgment appealed from, although no exception appears. Thornton v. Brady, 100 N.C 38, 5 S.E. Rep. 910; Bush v. Hall, 95 N.C. 82; and other like cases. We have examined the record, and are of opinion that it does not. The evidence produced tended to prove that the order of sale and the sale of the land complained of were fraudulent, and the court may have founded its judgment upon the ground that they were so. That it did, does not, however, appear. If it did, the judgment was not warranted, because the orders complained of could not be attacked for fraud by a motion in the cause. The court ought not to have received evidence of such fraud, nor ought it to have based its judgment upon such ground. As we have seen, the orders could be attacked for fraud, only by an independent action. Judgments may be void, irregular, or...