Cox v. Boyden

• Decision Date: 10 April 1918
• Docket Number: 357.
• Citation: 95 S.E. 548,175 N.C. 368
• Parties: COX ET AL. v. BOYDEN.
• Court: North Carolina Supreme Court

95 S.E. 548

175 N.C. 368

COX ET AL. v. BOYDEN.

No. 357.

Supreme Court of North Carolina

April 10, 1918

Appeal from Superior Court, Surry County; Adams, Judge.

Action by R. M. Cox and another, administrators, against C. V. S Boyden, administrator. Judgment was entered for plaintiffs defendant's motion to set aside was denied, and she appeals. Affirmed.

This is a motion to set aside a judgment rendered at August term 1913, in the above-entitled cause. The following are the facts as found, and recited by Judge Adams in the judgment rendered by him:

This cause was instituted in Surry county, and Judge Lyon rendered a judgment herein in the county of Forsyth at the December term, 1911, purporting to be by consent of the parties. At the October term, 1913, C. V. S. Boyden entered a motion on notice to set aside this judgment on the ground that it was made without her knowledge and without the consent of either herself or her counsel. This motion was heard at the February term, 1914, of the superior court of Forsyth county, and his honor, Judge Devin, declined to consider the affidavit and motion on the ground that he was without power to disturb the judgment rendered by Judge Lyon. An appeal was taken to the Supreme Court, and after the opinion of the Supreme Court was rendered in the cause (167 N.C. 320, 83 S.E. 246), the motion again came on to be heard before Judge Cline in Surry county at August term 1915. At the hearing C. V. S. Boyden signed a paper writing and acknowledged the execution of the same before J. A. Jackson, clerk of the superior court of Surry county, which is filed in the cause, to which reference is made, and at the same time Judge Cline rendered a judgment in the cause in Surry county, to which also reference is made. No appeal was taken by C. V. S. Boyden or any other party from the judgment of Judge Cline. C. V. S. Boyden now comes, in her own proper person and as administratrix of N. A. Boyden, and files an affidavit and petition, subscribed and verified by her before Ernest Transou, deputy clerk of superior court of Forsyth county, September 17, 1917, which is filed in the cause, praying this court, sitting in Forsyth county, to set aside the judgment rendered by Judge Cline. C. V. S. Boyden appears in court in person and by her attorneys, Benbow, Hall & Benbow, in her personal capacity and in her capacity as administratrix of N. A. Boyden, and requests the court to hear this motion in Forsyth county, and produces a written paper signed by her, consenting that the cause be heard in Forsyth county at the May term, 1917, of the superior court, instead of being heard in Surry county. The hearing having been continued by consent, C. V. S. Boyden now requests the court, in person and through her attorneys, to hear the motion in Forsyth county, and expressly states that in her personal capacity and in her representative capacity she consents that the motion be heard here. As stated, C. V. S. Boyden did not appeal from the order of Judge Cline, but filed certain affidavits before Judge Stacy at the October term, 1916, superior court of Surry county, and it seems that the motion was continued from time to time in Surry, and now comes on for hearing in Forsyth county by consent of all parties."

The following judgment was entered by Judge Cline at August term, 1913:

This cause coming on to be heard before his honor, E. B. Cline, judge presiding, and being heard by him, and the defendant, C. V. S. Boyden, being present in open court, in her proper person, and being also represented by counsel, W. L. Reece, and thereupon the said C. V. S. Boyden having signed and acknowledged a paper writing, which said paper writing is made a part of the record in this cause, whereby the said C. V. S. Boyden, individually and as said administratrix, withdrew her motion to set aside the judgment rendered in this cause by his honor, C. C. Lyon, judge presiding at December term, 1911, of the superior court of Forsyth county, and whereby she further agrees and consents that said judgment should be declared valid by this court at this term, and that all other judgments heretofore signed, subsequent to said judgment of December, 1911, shall also be declared valid judgments and binding upon all the parties to this action: Now, therefore, it is ordered and adjudged that the judgment signed by C. C. Lyon, judge presiding, at the December term, 1911, of Forsyth superior court, is a valid judgment and binding upon all the parties hereto, and that the judgment signed by his honor, C. M. Cooke, judge presiding at Forsyth superior court, and that all judgments and orders made in this cause since the judgment at December, 1911, are hereby declared valid and binding on all the parties in this cause. And it is further ordered that all sales of land heretofore made by commissioners in this cause are hereby ratified and confirmed in all respects."

The court then further adjudged that E. L. Gaither, Esq., the commissioner, collect the purchase money for the lands theretofore sold by him from S.E. Marshall, the purchaser and distribute the proceeds as therein directed. It is further stated that C. V. S. Boyden bases her motion to set aside the judgment upon her denial that she had ever signed any paper writing, for plaintiffs or others, in which she withdrew objection to the judgment rendered by Judge Lyon and the orders and judgments subsequent thereto, or that she had waived all objection to the paper she signed at August term, 1913 (Exhibit A), which she alleges was obtained by intimidation, coercion, and duress, and which was a waiver only of her right to object to the judgments,...