Martin v. Boyden

• Decision Date: 05 November 1914
• Docket Number: (No. 334.)
• Citation: 83 S.E. 246,167 N. C. 320
• Court: North Carolina Supreme Court
• Parties: COX & MARTIN. v. BOYDEN et al.

83 S.E. 246

167 N. C. 320

COX & MARTIN.

v.BOYDEN et al.

(No. 334.)

Supreme Court of North Carolina.

Nov. 5, 1914.

Judgment (§ 407*) — Consent — Vacation — Procedure—Motion.

Where a judgment purported to have been entered by consent of counsel for both parties, and plaintiff thereafter claimed that neither she nor her counsel consented to such judgment, the proper procedure to open the same was by motion in the cause, and not by an independent action.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 768-771, 773, 774; Dec. Dig. $ 407.^*]

Appeal from Superior Court, Surry County; Devin, Judge.

Action by Cox & Martin, as administrators, etc., against C. V. S. Boyden, as administratrix, and others. On motion to set aside a judgment alleged to have been entered by consent. From an order denying the motion, defendants appeal. Reversed.

The cause was pending in the superior court of Surry county, and on reference had, report was made and judgment entered confirming report and, among other things, ordering a sale of certain lands of N. A. Boyden, deceased, etc., and application of proceeds to creditors. This judgment was signed by his honor, C. C. Lyon, judge, presiding at a superior court of Forsyth county, December, 1911, and concludes as follows: "This judgment is signed by consent of counsel both for plaintiff and defendant, in the superior court of Forsyth county, N. C."

Thereupon C. V. S. Boyden, at October term, 1913, entered a motion on notice given to set aside such judgment and, same having been continued to February term, 1914, said defendant submitted an affidavit tending to show that her rights as a litigant were wrongfully prejudiced by said judgment, and averring that same was signed in the county of Forsyth without her "knowledge and without the consent of either herself or her counsel, " and the court, being of opinion that it was without power to disturb the judgment signed by Judge Lyon declined to consider the affidavit of defendant or find the facts relevant to the inquiry, and entered judgment that the former judgment was in all respects valid, and thereupon defendant excepted and appealed.

Winston & Biggs, of Raleigh, for appellants.

HOKE, J. (after stating the facts as above). in Bank v. Peregoy-Jenkins Co., 147 N. C. 293, 61 S. E. 68, the court held that except by consent, or, unless authorized by statute, a judge was without power to sign a judgment affecting substantial rights of a party litigant in one county when the cause was pending in another, and, this being true, if the judgment objected to was signed without the eon-sent of affiant or her counsel, in the county of Forsyth, when the cause was pending in the county of Surry, it is open to her to question its validity, and, whether the same is void or only irregular, our decisions are to the effect that the proper procedure is by motion in the cause. Massie v. Hainey, 165 N. C. 174, 81 S. E. 135; Bank v. McEwen, 160 N. C. 414, 76 S. E. 222, Ann. Cas. 1914C, 542; Calmes v. Lambert, 153 N. C. 248, 69 S. E. 138; Roberts v. Pratt, 152 N. C. 731, 6S S. E. 240; Rackley v. Roberts, 147 N. C. 201, 60 S. E. 975; Flowers v. King, 145 N. C. 234, 58 S. E. 1074, 122 Am. St. Rep. 444; Becton v. Dunn, 137 N. C. 559, 50 S. E. 289. In reference to the position that this is a judgment in its nature final, to be impeached only by...