Grant v. Harrell

• Decision Date: 13 October 1891
• Citation: 109 N.C. 78,13 S.E. 718
• Court: North Carolina Supreme Court
• Parties: Grant et al. v. Harrell et al.

13 S.E. 718

109 N.C. 78

Grant et al.

v.Harrell et al.

Supreme Court of North Carolina.

Oct. 13, 1891.

Setting Aside Judgment—Procedure.

An independent action is not the proper remedy for setting aside a judgment, entered in a special proceeding, on the ground that a summons, necessary to give the court jurisdiction, was not served; but relief can be obtained only by a motion in the cause.

Appeal from superior court, Northampton county, Henry G. Connor, Judge.

Action by James W. Grant against Paul Harrell. In a special proceeding specified in the complaint in this action, it appears by the return of the summons in that proceeding that the same was duly served upon the defendants therein named; whereas in fact, as the plaintiffs allege, that summons never was served. In that special proceeding a filial judgment was entered, of which the plaintiffs complain, and the purpose of this action is to have the same set aside and declared void, upon the ground that the summons mentioned was never served, and hence the court had no jurisdiction of the parties named therein as defendants. The court below, "being of opinion that a motion in the cause is the proper remedy for the plaintiffs' alleged grievance, " gave judgment dismissing the action, and both parties, having excepted, appealed to this court.

Thos. W. Mason and R. B. Peebles, for plaintiffs.

Robt. O. Burton, for defendants.

Merrimon, C. J., (after stating the facts.) In view of a multitude of decisions of this court it is too clear to admit of serious question that the court properly dismissed the action upon the ground that the plaintiffs' remedy is by a motion in the cause. Carter v. Rountree, 13 S. E. Rep. 716, (decided at this term.) Judgment affirmed.

Merrimon, C. J. This, the defendants' appeal, is in effect disposed of by what we have said at the present term in the plaintiffs' appeal, in the same case. Judgment affirmed.