Caviness v. Hunt

• Decision Date: 17 November 1920
• Docket Number: 399.
• Parties: CAVINESS v. HUNT.
• Court: North Carolina Supreme Court

104 S.E. 763

180 N.C. 384

CAVINESS v. HUNT.

No. 399.

Supreme Court of North Carolina

November 17, 1920

Appeal from Superior Court, Guilford County; Ray, Judge.

Action by I. F. Caviness against W. H. Hunt, receiver of the International Furniture Company. From an order overruling demurrer to the complaint, defendant excepted and appeals. Reversed.

This is an action brought in the superior court of Guilford county to set aside a judgment rendered in Granville county in favor of the defendant in this action against the plaintiff herein as indorser on a note, on the ground that the summons in the action was not served on the defendant, although the return of the sheriff shows service. The plaintiff also alleges that the judgment has been docketed in Guilford county, and is a cloud on his title to a tract of land, and facts which would constitute a meritorious defense to the original action. The defendant demurred to the complaint upon the ground that it does not state a cause of action, contending that the remedy of the plaintiff is by motion to set aside the judgment. The demurrer was overruled, and the defendant excepted and appealed.

B. S Royster, C. R. Wharton, and E. P. Hobgood, Jr., for appellant.

Brooks Hines & Kelly, for appellee.

ALLEN J.

It makes little difference whether this action is called one to remove a cloud from title or to invoke the aid of a court of equity to prevent an injustice, its purpose is to set aside a judgment, regular on its face, and rendered on process showing service, and under such conditions the law furnishes a complete and adequate remedy by motion in the original action.

The authorities in support of this principle are numerous, and it is correctly stated in Stocks v. Stocks, 179 N.C 288, 102 S.E. 306, as follows:

"Where it appears that summons has been served, when in fact it has not been, the remedy is by motion in the cause to set aside the judgment, and not by an independent civil action, but when it appears on the record that it has not been served, the judgment is open to collateral attack. Boyle v. Brown, 72 N.C. 393; Whitehurst v. Transportation Co., 109 N.C. 342; Carter v. Rountree, 109 N.C. 29; Rutherford v. Ray, 147 N.C. 253; Rackley v. Roberts, 147 N.C. 201; Bailey v. Hopkins, 152 N.C. 748; Hargrove v. Wilson, 148 N.C. 439; Glisson v. Glisson, 153 N.C. 185; Barefoot v. Musselwhite, 153 N.C. 208."

Mason v. Miles, 63 N.C. 564, is very much in point. In that case a new action was brought to set aside a judgment for failure to serve the summons, and, after holding that the remedy was by motion in the cause, and that the return of the sheriff could not be set aside on a single affidavit, the court says:

"As the courts are now always open, the remedy of the plaintiff, as above indicated, is speedy and complete. Mason has chosen to seek his remedy by another action, which is in the nature of an equitable proceeding; and it is a well-settled principle of equity that where a person can have adequate relief by an order in a cause pending in the same court, he shall not be allowed to seek his remedy by a separate suit. Rogers v. Holt, 62 N.C. 108. This rule of equity must be enforced in our present system of civil procedure."

And as said by Pearson, C.J., in Emmons v. McKesson, 58 N.C. 95:

"If it is admitted that the judgment is irregular or void, that constitutes no equity. The plaintiff has a plain remedy at law to have the judgment set aside or vacated, and the execution called in, on motion, in the court where it was rendered."

Nor does the difficulty of...