Ferrell Et Ux v. Brd.Way

• Decision Date: 27 March 1900
• Citation: 35 S.E. 467,125 N.C. 258
• Court: North Carolina Supreme Court
• Parties: FERRELL et ux. v. BROADWAY.

35 S.E. 467

125 N.C. 258

FERRELL et ux.

v.BROADWAY.

Supreme Court of North Carolina.

March 27, 1900.

infants—judgment—consent of next friend—supervision of court —res judicata.

1. Where issue was joined between infants on one side and an adverse party, and verdict and judgment were entered by consent, by the next friend or counsel of such infants, without the introduction of any evidence, or any knowledge on the part of the court of the facts, such judgment will not bind the infants.

2. Where an issue as to the legitimacy of parties was submitted to the jury, and determined by them, and judgment rendered thereon, and no appeal taken, such matters became from such time res adjudicata.

Appeal from 'superior court, Lenoir county; Bryan, Judge.

Action by W. B. Ferrell and wife against E. S. Broadway. From a judgment in favor of defendant, plaintiffs appeal. Reversed.

N. J. Rouse, E. C. Smith, and Womack & Hayes, for appellants.

Aycock & Daniels, Allen & Dortch, and T. C. Wooten, for appellee.

MONTGOMERY, J. At August term, 1887, of Lenoir superior court, there was an action pending in which W. D. Broadway, M. L. Broadway, and Alice (Broadway) Faulkner were the plaintiffs, and E. S. Broadway, their brother, was the defendant The object of the suit was to have the defendant declared a trustee for them of a certain tract of land which had been sold by a decree of the superior court made at fall term, 1880, and which land at its sale was purchased, as the plaintiffs allege, by the defendant for their benefit. At the aforesaid August term of the court, the issues joined by the pleadings were submitted to the jury, and the responses thereto were in favor of the defendant and judgment was rendered accordingly. The plaintiffs were infants under 21 years of age, and their next friend, W. B. Ferrell, had died before the verdict and judgment, and no other next friend had been appointed. The present proceeding grows out of a motion of the plaintiffs, who are now of full age, to have that verdict and judgment set aside for irregularity. Notice was served upon J. W. Grainger, a purchaser of the land from E. S. Broadway. It was stated in one of the affidavits filed by the plaintiffs (that of C. A. Broadway) "that the alleged verdict and judgment in the cases of W. B. Ferrell and wife et al. against E. S. Broadway was by consent, and no evidence upon the issues, nor proof of the facts, were ever submitted to the jury, it being a merely formal submission of the issues, and very soon thereafter the property came into the possession of J. W. Grainger; that affiant was present when this matter was submitted as above stated, and affiant verily believes that J. W. Grainger was also present, and was aware of the manner in which the issues were submitted by the court." Grainger, in his answer to the motion, in his first affidavit did not unequivo cally deny the statements made in the affidavit above mentioned, but he affirmed that the

plaintiffs were estopped by the judgment of 1880, under which the lands were sold, and purchased by the defendant He did deny that he had any connection either with procuring or obtaining the rendition of the judgment at August term, 1887, or that he knew of the proceedings in the case; but that was not a denial of the statement in the affidavit of C. A. Broadway that he (the defendant Grainger) knew that the verdict and judgment were made by...