Larkins v. Bullard

• Decision Date: 28 February 1883
• Citation: 88 N.C. 35
• Court: North Carolina Supreme Court
• Parties: WILLIAM LARKINS and others v. JOHN BULLARD and others.

88 N.C. 35

WILLIAM LARKINS and others

v.JOHN BULLARD and others.

Supreme Court of North Carolina.

February Term, 1883.

MOTION to set aside a judgment heard at Fall Term, 1882, of SAMPSON Superior Court, before MacRae, J.

The plaintiff began an action in 1871, in the superior court of Sampson county, against John Bullard, for the recovery of a tract of land. At the return term he answered, and the cause was continued from time to time until spring term, 1874, when an order was made directing Marcus, Irene, Virginia, Lewis and Thomas Bullard, children of the said John, to be made parties defendant, with leave to file answer.

At spring term, 1875, judgment was rendered that the plaintiffs recover the land of the defendants, which upon its face purported to have been rendered for want of an answer as to all the defendants, except the said John, and as to him there was a verdict finding that he was in possession of the land and unlawfully withheld the same.

Subsequently, John Bullard died, and in 1879 his said children gave notice to the plaintiffs of a motion to set aside the judgment, which motion was heard at fall term, 1882, when, after considering the affidavits and counter-affidavits filed by the parties and examining the dockets, the judge below found the facts to be as follows:

At the time the children of John Bullard were directed to be made parties, and also at the time the judgment was rendered against them, they were all infants and without any general guardian. They were not served with any process in the cause, nor was any guardian ad litem appointed for them, or any answer filed for them. Their names nowhere appeared as defendants upon the docket of the court, and no attorney professed specially to represent them, though they were in fact represented by the attorney of their father, at whose instance alone they were ordered to be made parties. After the judgment, and before the notice to set it aside was issued, the plaintiffs were put in possession of the land under a writ of possession issued on the judgment, and under an execution issued thereon the costs of the action and a portion of the damages assessed by the jury, have been collected from the father and his sureties on the bond given to defend the action.

Upon the foregoing facts the judge below directed the judgment to be set aside as to the infant defendants, leaving it to stand as to John Bullard, and from this ruling the plaintiffs appeal.

Mr. D. J. Devane, for plaintiffs .

No counsel for defendants.

RUFFIN, J.

The finding of the court seems to go to the length of saying that, notwithstanding the order directing it to be done, the infant children of John Bullard were never in fact made parties to the action, or any defence...