Keaton v. Banks

• Decision Date: 31 December 1849
• Citation: Keaton v. Banks, 32 N.C. 381, 51 Am.Dec. 393, 10 Ired. 381 (N.C. 1849)
• Court: North Carolina Supreme Court
• Parties: BENJAMIN F. KEATON v. WILLIAM F. BANKS et al.

10 Ired. 381

32 N.C. 381

51 Am.Dec. 393

BENJAMIN F. KEATON

v.WILLIAM F. BANKS et al.

Supreme Court of North Carolina.

December Term, 1849.

A judgment may be vacated at any time, on motion in the same Court, in which it was rendered, upon parol proof that it was entered irregularly and not according to the course of the Court; as, for instance, where the defendant in the cause was an infant, and no guardian had been appointed to represent his interest.

The cases of White v. Albertson, 3 Dev. 242, Bender v. Askew, 3 Dev. 152, Pearson v. Nesbitt, 1 Dev. 315, and Crumpler v. Conner, 1 Dev. 53, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term 1849, his Honor Judge BAILEY presiding.

This is a motion to vacate a judgment. The case is as follows: A writ was issued on the 2nd day of March 1841, at the instance of Banks against Benjamin F. Keaton, who was an infant, returnable to the March Term 1841, of the County Court of Pasquotank. This writ was filed, endorsed, “service accepted William F. Keaton.” At the same term the cause was referred to the Clerk, who at September term 1841, made a report, after which, upon the record was found the following entry: “Jury impannelled and find that the defendant did assume,” &c. Judgment was rendered, and on an execution issued thereon negroes belonging to the plaintiff were sold. The sale took place in the Spring of 1843. In August 1849, a notice was issued to the defendant by the plaintiff, that, at the ensuing term of the County Court of Pasquotank, a motion would be made to vacate the judgment so obtained, and at the succeeding Term in September, all parties being in Court, “it was adjudged by the Court, that the said judgment be set aside and declared void.” From this judgment, Banks appealed to the Superior Court. In the Superior Court, the plaintiff offered evidence to show, that, by the judgment originally given against him in the County Court, while he was an infant, he was greatly injured, by reason of the want of a proper defence to the action. He further offered to show by William F. Keaton, that he never was appointed guardian ad litem to Benjamin F. Keaton to his knowledge, nor ever consented to be appointed, and that he did not defend the said action. This parol evidence the Court refused to hear and reversed the order of the County Court.

From this judgment the plaintiff appealed.

Heath, for the plaintiff .

Ehringhaus, for the defendants .

NASH, J.

We do not concur in the opinion of the Court below. The error seems to have originated in not adverting to the difference between receiving parol testimony to impeach a judgment collaterally, and to receiving it on a motion to vacate it, made in the Court where the judgment is. In the former case it is certainly incompetent, in the latter it is competent. Upon the appeal from the judgment of the County to the Superior Court, the trial was to be had in the latter, as it was had in the former. And, if the evidence offered to his Honor was such, as would have been proper in the County Court, it ought to have been admitted by him. In the writ William F. Keaton is called the guardian ad litem of Benjamin, and the record is upon its face regular according to the course of the Court. The service of the writ appeared to have been admitted by William F. Keaton; the Court must have then considered the infant Benjamin in Court. The fact was otherwise. According to the evidence offered, William F. Keaton never was appointed the guardian of the infant, and never consented to be so, and did not defend the action. If this was so, the judgment was in reality irregular, and contrary to the course of the Court. If an action had been brought to recover the property sold under it, however, evidence could not have been received to impeach it. It was the judgment of a Court having jurisdiction of the matter?? But, according to the fact, Benjamin F. Keaton was no party to the proceedings either by himself or his guardian. And the judgment is void, for there can be no judgment against a person not in Court. White v. Albertson, 2 Dev. 242. The question then presents itself,...