Jordan v. McKenzie

• Decision Date: 26 November 1930
• Docket Number: 437.
• Citation: 155 S.E. 868,199 N.C. 750
• Parties: JORDAN v. McKENZIE.
• Court: North Carolina Supreme Court

155 S.E. 868

199 N.C. 750

JORDAN v. McKENZIE.

No. 437.

Supreme Court of North Carolina

November 26, 1930

Appeal from Superior Court, Moore County; Barnhill, Judge.

Action by J. S. Jordan against Mrs. Lydia McKenzie, in which plaintiff recovered judgment by default. D. A. McKenzie Administrator of Mrs. Lydia McKenzie, moved that judgment by default be set aside and vacated, and, from a judgment denying his motion and affirming an order of the clerk denying his motion, the administrator appeals.

Remanded with direction.

Officer's return showing summons was duly served, while prima facie sufficient to show service, is not conclusive.

Where officer's return shows service of summons, contrary may be shown by clear and unequivocal evidence.

This is an action to recover of the defendant the sum of $341.25 damages for breach of the covenant of seizin contained in a deed by which the defendant conveyed to the plaintiff the land described therein.

The action was begun in the superior court of Moore county, on March 22, 1928. On Monday, April 30, 1928, judgment by default final was entered by the clerk of said court. In said judgment, it is recited that it appeared to the court that the summons and the complaint, duly verified, had been duly served on the defendant by the sheriff of Scotland county, on March 24, 1928, and that no answer or other pleading had been filed by the defendant. It was thereupon adjudged, on motion of the plaintiff, that plaintiff recover of the defendant the sum of $341.25, with interest and costs.

Since the rendition of the judgment by default final in this action, the defendant, Mrs. Lydia McKenzie, has died. Her son, D. A. McKenzie, was duly appointed her administrator on March 11, 1930.

On March 22, 1930, after notice to plaintiff, the said D. A McKenzie, administrator of Mrs. Lydia McKenzie, the defendant, moved, in the action before the clerk of the superior court of Moore county, that the judgment by default final be set aside and vacated, on the ground, (1) that the summons herein was never served on the defendant, Mrs. Lydia McKenzie, notwithstanding the return thereon to the contrary; and (2) that in any event, upon the cause of action alleged in the complaint, plaintiff was not entitled to judgment by default final, but at most only to judgment by default and inquiry.

From the order of the clerk, denying his motion, the said D. A. McKenzie, administrator of Mrs. Lydia McKenzie, appealed to the judge of the superior court, holding the courts of Moore county.

At the hearing of said appeal at March term, 1930, of the superior court of Moore county, evidence was offered by the said D. A McKenzie, administrator, tending to show that on March 24, 1928, the day on which it appears, from the return thereon, that the summons in this action was served by the sheriff of Scotland county, Mrs. Lydia McKenzie, the defendant, was at the home of her son, D. H. McKenzie, in Scotland county; that on said day, the said defendant was confined to her bed, suffering from a disease, which soon thereafter caused her death; that because of said disease, she was at times delirious, and incapable of understanding the purpose and effect of the service of a summons; that her condition, both physical and mental, on said day, was made known to the deputy sheriff, who had come to her son's home to serve the summons and complaint in this...