Hatley v. Hatley
| Decision Date | 13 April 1932 |
| Docket Number | No. 50.,50. |
| Citation | 202 N. C. 577,163 S.E. 593 |
| Parties | HATLEY. v. HATLEY. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Nash County; Grady, Judge.
Suit by L. P. Hatley against Claudia May Hatley, in which there was decree for plaintiff. From decree setting aside final decree on motion, plaintiff appeals.
Affirmed.
The facts found by the judge and upon which the judgment was based are as follows: "The summons in this cause was issued and a duly verified complaint filed on September 18, 1930; the cause of action alleged in said complaint being for divorce on the grounds of abandonment and separation for a period of five years."
The summons was returned by the sheriff: Said return is not dated.
On September 16, 1930, the plaintiff filed an affidavit in the clerk's office, stating under oath that said summons had been issued and returned as above stated, and further stating upon oath, "that the defendant therein cannot after due diligence be found within the state." Upon said affidavit, which is made a part of this finding of fact, the clerk entered the order on September 18, 1930, directing that service of said summons be made by publication, and thereupon a notice of the pendency of the action was published in "The Graphic, " a newspaper published in Nashville, N. C, as will appear by affidavit on file in the judgment roll.
Thereafter, at the November term, 1930, said cause was heard before Cranmer, J., andthe jury found that there had been a separation of the parties for five years, and that the plaintiff was the injured party.
In the complaint, verified by the plaintiff and filed September 18, 1930, it is alleged that one child had been born to the marriage, "who is now living, namely, May Ella Hatley, 15 years of age, and said child is with its mother"; said mother being the defendant in this cause.
On July 20, 1930, plaintiff wrote a postal card to the said May Ella Hatley and addressed the same to her at Tarboro, N. C, he knowing at the time that she was living with her mother, the defendant, Claudia May Hatley. Said card was put in evidence and is made a part of this finding of fact.
The court finds also that the plaintiff knew at the time of the issuance of the summons in this cause that his wife was living in Tarboro, N. C.; that he knew said facts at the time he made the affidavit in order to obtain the order of publication; and the court finds that...
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Carpenter v. Carpenter
...and, upon motion in the cause by the party upon whom no process has been served, the court will set aside the judgment. Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Fowler v. Fowler, supra. The same rule applies when the judgment is apparently regular, the judgment roll showing service or ......
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McLean v. McLean
...rendered thereon is a nullity and may be vacated on motion in the cause. Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227. Here the fact of the plaintiff......
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Chen v. Zou
...60(b). Freeman, 155 N.C.App. at 606, 573 S.E.2d at 711. Our Supreme Court has long recognized this distinction. See Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593 (1932) ; Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315 (1925). Since subsection (4) of Rule 60(b) was the proper ground for Defenda......
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Patrick v. Patrick
...decree may be set aside.' McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138; Bass v. Moore, 229 N.C. 211, 49 S.E.2d 391; Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Fowler v. Fowler, 190 N.C. 536, 130 S.E. The Superior Court has power, upon motion in the cause, to make inquiry, to find facts,......