Craddock v. Brinkley

• Decision Date: 19 February 1919
• Docket Number: 11.
• Citation: 98 S.E. 280,177 N.C. 125
• Parties: CRADDOCK v. BRINKLEY.
• Court: North Carolina Supreme Court

98 S.E. 280

177 N.C. 125

CRADDOCK v. BRINKLEY.

No. 11.

Supreme Court of North Carolina

February 19, 1919

Appeal from Superior Court, Washington County; Whedbee, Judge.

Action by Sallie A. Craddock against David O. Brinkley. Judgment for plaintiff, and defendant appeals. No error.

The plaintiff, a married woman, owned land adjoining the defendant. Prior to 1906, controversy arose as to the line of division between the two tracts, and a suit was instituted in the name of herself and husband against the defendant. Summons was issued, but it does not appear that any pleadings were filed. At the time of the commencement of the suit in 1906 the plaintiff was insane. No next friend was appointed for her, and at fall term, 1906, of Washington, what purports to be a consent judgment was signed, establishing the line giving the defendant 20 acres of land, which the jury now find belonged to the plaintiff. The plaintiff at that time was insane and confined in an asylum, and it appears that the husband, after conference with defendant's attorney accepted $50 in consideration of which the judgment was entered.

A proceeding to set aside a consent judgment against plaintiff on the ground that she was then insane and not represented by guardian, held a direct proceeding to set aside the judgment and not a collateral attack.

Ward & Grimes, of Washington, N. C., for appellant.

Small MacLean, Bragaw & Rodman, of Washington, N. C., Meekins & McMullan, of Elizabeth City, and Z. V. Norman, of Plymouth, for appellee.

CLARK C.J.

The jury find that the plaintiff was insane and confined in an insane asylum at the time the former action was instituted, and also at the time the consent judgment was entered, and that the 20 acres in controversy are her property. The defendant enters two assignments of error: (1) That this proceeding cannot be maintained, because it is a collateral attack upon the former judgment, and that plaintiff's remedy is by a motion in the cause. (2) That the judgment in the former action is an estoppel on the plaintiff, and conclusive, because the action was brought in the joint name of her husband and herself, and that he was her legal representative in the action.

As to the first proposition, this is not a collateral attack, but a direct proceeding to set aside the judgment. The insanity of the plaintiff, and the invalidity of the judgment for that reason, are alleged, and there are both ground and prayer to set aside the judgment and also a demand for the recovery of the property. It is true that, when the ground alleged for setting aside the judgment is not based upon fraud, the proper remedy is by motion in the cause; but we have no distinct forms of action now, and it has been held that when a party by mistake brings an independent action, when his remedy is by motion in the original cause, the court may, in its discretion, treat the summons and complaint as a motion. Jarman v. Saunders, 64 N.C. 367. It is true that an independent action, when brought in another county, cannot be treated as a motion in the cause (Rosenthal v. Roberson, 114 N.C. 602, 19 S.E. 667); but that does not obtain here, as the proceeding is in the same county.

As to the second point, the jury having found...