Howard v. Boyce

• Decision Date: 22 November 1961
• Docket Number: No. 33,33
• Parties: Frances Badham HOWARD; Fannie Badham; Bessie B. Small; Sidney Badham; Miles Badham; Penelope Overton; Alexander Badham; Charity Badham; Charles Badham; Sadie B. Hawkins; Pauline B. Turner; Frank Badham; James (Janie) Badham, and all other Heirs at Law of Hannibal Badham, deceased, v. Lonnie BOYCE.
• Court: North Carolina Supreme Court

Page 601

122 S.E.2d 601

255 N.C. 712

Frances Badham HOWARD; Fannie Badham; Bessie B. Small;

Sidney Badham; Miles Badham; Penelope Overton; Alexander

Badham; Charity Badham; Charles Badham; Sadie B. Hawkins;

Pauline B. Turner; Frank Badham; James (Janie) Badham, and all other Heirs at Law of Hannibal Badham, deceased, v. Lonnie BOYCE.

No. 33

Supreme Court of North Carolina.

Nov. 22, 1961

Samuel S. Mitchell, Raleigh, Roy Conrad Boddie, Rocky Mount, Chance, Mitchell & Wells, New York City, for plaintiff-appellant.

Pritchett & Cooke, Windsor, and Weldon A. Hollowell, Edenton, for defendant-appellee.

RODMAN, Justice.

Appellant has made no motion to vacate the judgment rendered in 1945, nor have any parties named as plaintiffs made such a motion except movants Penelope Overton and Alexander Badham. The only parties before the court seeking an adjudication of their rights at the May 1961 Term were movants Overton, Badham, and respondent Boyce. Their appearance, voluntary or by process duly issued and served, authorized the court to determine their rights inter se. The court had no power to declare or deny a right to one not seeking a determination of his rights. Howard v. Boyce, supra; Peel v. Moore, 244 N.C. 512, 94 S.E.2d 491; Queen City Coach Co. v. Burrell, 241 N.C. 432, 85 S.E.2d 688; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26; Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223; Allred v. Smith, 135 N.C. 443, 47 S.E. 597, 65 L.R.A. 924; Loven v. Parson, 127 N.C. 301, 37 S.E. 271; Falls v. Gamble, 66 N.C. 455.

The court, on the findings made, correctly adjudged that the judgment rendered in 1945 was not binding on movants Overton and Badham. That was the only question it was called upon to decide. It exceeded its jurisdiction by adjudging rights of parties not before it and not seeking its aid.

The cause is remanded to the Superior Court of Chowan County with instructions to modify and correct Judge Parker's judgment to conform to this opinion.

Remanded for modification.