Mabry v. Henry

• Decision Date: 30 June 1880
• Citation: 83 N.C. 298
• Parties: JOSEPH A. MABRY v. R. M. HENRY and others.
• Court: North Carolina Supreme Court

83 N.C. 298

JOSEPH A. MABRY

v.R. M. HENRY and others.

Supreme Court of North Carolina.

June Term, 1880.

Motion to set aside a judgment, heard at Fall Term, 1879, of BUNCOMBE Superior Court, before Graves, J.

Both parties appeal from the ruling of the court below.

Mr. James H. Merrimon, for plaintiff .

Messrs. W. H. Malone and Battle & Mordecai, for defendants .

SMITH, C. J.

The plaintiff after due service of process and for want of an answer recovered judgment against the defendants at fall term, 1874, of Buncombe superior court for $5,416.50, whereof $3,000 is principal money. On December 26th, 1876, notice of a motion to vacate the judgment was served upon the plaintiff's attorney, upon the following grounds therein assigned:

1. On account of mistake, inadvertence, surprise or excusable neglect.

2. For that the judgment was obtained against the course of the court and is irregular and this defendant has a good and valid defence in law, in equity and in good morals to the said action. The motion was heard at fall term, 1877, upon the affidavits of the defendants, R. M. Henry and M. Erwin, of E. B. Davis former sheriff of Jackson county, J. E. Reed clerk of the said superior court, and a certified transcript of the judgment rendered in the former court of equity on which that now sought to be set aside is founded; and the court decided that the motion was not made in time under C. C. P., § 133, but was irregular under section 217, and ordered it to be vacated. Upon appeal by both parties from this ruling, it was held that the vacating order was unauthorized upon either ground and was reversed as erroneous. The opinion is reported in 78 N. C., 45 and 46.

A similar motion, after due notice, has been made, distinctively put upon the ground of a fraudulent advantage taken of the defendants in entering up the judgment and upon evidence more full and minute, but in substance the same as that produced upon the former trial, the particulars of which it is not necessary to repeat except that it is directed to an impeachment of the judgment itself as unjust and inequitable.

At fall term, 1879, the motion was again heard before the presiding judge who refused to vacate and held that the judgment should stand as a security for whatever sum, to be ascertained upon a reference for an account, should be found to be due to the plaintiff, and directed, upon defendant's giving a bond of indemnity against damages, an injunction to issue restraining the plaintiff from proceeding to enforce the collection of his judgment.

From this ruling both parties again appeal; the defendants from the refusal to vacate; and the plaintiff from the restriction of the annexed trust and the restraining order to give it effect.

The question to be determined is whether the matter is res adjudicata, or is open to the present renewed application.

The first application proceeds upon two specially assigned grounds, but any others could have been added sufficient to support the motion to set aside the judgment. Indeed these two are less congruous than would be the first associated with that now assigned. They all look to one common result, relief from an inequitable judgment, and are indeed but accumulated reasons why it should be granted. The notice itself in general terms impeaches the judgment as indefensible in law, in equity and good morals, a basis sufficiently comprehensive to admit the attack now made upon its fairness and integrity. The evidence then as now offered is largely directed to an impeachment of the judgment on its merits as well as for the manner in which it was entered up. If this further ground could have been taken in that proceeding, and we see no reason why it could not, then whether in fact it was or was not, the result is equally decisive and fatal. The law does not tolerate successive actions or proceedings, merely upon newly assigned reasons, when one and the same object is aimed at in all and it can as well be attained in a single action or proceeding; unless perhaps when a party is prevented by the fraud of another, an exception which finds no support in the facts of this case. The cases cited for the defendant, Jarman v. Saunders, 64 N. C., 367; Thompson v. Badham, 70 N. C.,...