Godwin v. Monds

• Decision Date: 12 November 1888
• Citation: 7 S.E. 793,101 N.C. 354
• Parties: GODWIN et al. v. MONDS et al.
• Court: North Carolina Supreme Court

7 S.E. 793

101 N.C. 354

GODWIN et al. v. MONDS et al.

Supreme Court of North Carolina

November 12, 1888

Appeal from superior court, Cumberland county; SHEPHERD, Judge.

In this action by N.H. Godwin and others against Hinton Monds and others, pending in Cumberland county, an order setting aside a judgment for plaintiffs was made on an order to show cause heard and determined in Anson county, and plaintiffs appeal.

A motion to set aside a judgment can only be heard and determined in the county in which the action is pending unless consent appears from written stipulation, or a recital in the order, or by implication from presence at the hearing without making objection; and the objection may be taken in the Supreme Court without exception or assignment of error.

F. P Jones, for plaintiffs.

H. McD. Robinson, for defendants.

MERRIMON J.

In this action, pending in the superior court of the county of Cumberland, the plaintiff obtained a judgment for the want of an answer. The defendants moved, upon affidavits before a judge at chambers, to set that judgment aside, etc., because of their "mistake, inadvertence, surprise, or excusable negligence." Thereupon the judge made an order, and the following is a copy of the material parts thereof: "On motion of the defendants, M. W. Barefoot and K. E. Barefoot supported by affidavits, it is ordered by the court that the clerk of the superior court of Cumberland county issue notice to the plaintiffs to show cause before me at chambers at Wadesborough, on September 7, 1888, why the execution and writ of possession issued in this case, and now in the hands of the sheriff of Harnett county, should not be set aside, and why the judgment in this cause shall not also be set aside and the case reopened, to be tried upon its merits. In the mean time the plaintiffs, their agents and attorneys, are restrained from proceeding further to enforce said execution and writ of possession. The clerk will issue a copy of this order to plaintiffs upon the defendants filing with him a bond in the sum of two hundred dollars, with good and sufficient security to be approved by him, and conditioned as required by law for the indemnity of the plaintiffs against damage because of this order; a copy of this order not to issue until said bond is approved and filed." Afterwards, at Wadesborough in the county of Anson, the court heard the motion upon the merits, and made an order setting...