Mebane v. Pope

• Court: North Carolina Supreme Court
• Writing for the Court: SMITH
• Citation: Mebane v. Pope, 81 N.C. 22 (N.C. 1879)
• Decision Date: 30 June 1879
• Parties: VICK & MEBANE v. WILLIAM P. POPE and wife.

81 N.C. 22

VICK & MEBANE

v.WILLIAM P. POPE and wife.

Supreme Court of North Carolina.

June Term, 1879.

MOTION in the Cause to vacate a Judgment heard at Spring Term, 1878, of NEW HANOVER Superior Court, before Eure, J.

This motion was made by the feme defendant to set aside a judgment obtained by the plaintiffs against the defendants upon the ground that the note on which the judgment was taken was executed by her jointly with her husband, and that the consideration thereof was not in any way for her separate use or benefit, and contained no charge upon her separate estate; that execution has been issued and is now in the hands of the sheriff who threatens to levy upon the separate estate of the petitioner. Upon these and the additional facts set out in the opinion of this court, the judge below ordered the judgment to be vacated as to the feme defendant, and the assignee of plaintiffs appealed.

Messrs. Merrimon, Fuller & Ashe, for plaintiffs :

The motion is too late unless the judgment is irregular, C. C. P., § 133; Askew v. Capehart, 79 N. C., 17; Monroe v. Whitted, Ibid., 508; Skinner v. Moore, 2 Dev. & Bat., 138. Defendant suggests it is irregular and can be set aside at any time because the wife could not make the contract; but the wife had the power to make the contract with the written consent of her husband. Bat. Rev., ch. 59, § 17. And the note being their joint and several note is made with his written assent. Even if contract as to wife should be held invalid, it does not invalidate the judgment from which an appeal might have been taken for error in law; this was not done, and the determination of the rights of the parties is final. C. C. P., § 216. The judgment in such case would be erroneous merely, and not irregular, and motion to set it aside must be within twelve months. Nor is it irregular to give judgment against husband and wife; they appear by their attorney. Frazier v. Felton, 1 Hawks., 231. And the judgment binds both. Green v. Branton, 1 Dev. Eq., 504.

Mr. D. L. Russell, for defendants .

SMITH, C. J.

On the 6th day of April, 1875, the plaintiffs sued out a summons against the defendants returnable to spring term, wherein is demanded the sum of $1,456, with interest from March 30th, 1874, which was duly served on both and returned.

The cause was thereupon docketed, and the defendants' attorney entered an appearance for them. No complaint or other pleading was filed, but instead thereof, the promissory note of the defendants for the same principal money and with like interest as described in the summons.

The cause was continued till fall term following, when, on motion in open court, judgment was entered up against the defendants. The judgment has since been assigned to the First National Bank of Wilmington, at whose instance execution has issued.

The defendants, on the 15th day of March, 1878, moved to set aside the judgment, and meanwhile for a restraining order upon their affidavit, the material facts set out in which are the following: That the feme defendant was a married woman when jointly with her husband she executed the note, and that the consideration thereof enured wholly to his benefit, and not to the benefit of herself or of her separate estate; that it contained no charge upon her separate property, and that she was not a free-trader. Nothing further is alleged to impeach the validity of the transaction or the regularity of the proceedings in the action, terminating in the judgment, and no objection urged except that growing out of the disabilities incident to her coverture.

On hearing the motion, the court ordered the judgment to be vacated and set aside as to the feme defendant, and from this judgment the assignee appeals.

1. It is obvious no relief can be obtained under section 133 C. C. P., because the motion is not made in apt time, and the facts contained in the affidavit do not constitute a case of “mistake, inadvertence, surprise or excusable neglect” on the part of either defendant. We have so often had occasion to advert to this section that nothing further need be said as to its proper construction. The argument in support of the ruling of the court is not derived from that section, but is put entirely upon these grounds: first, the incapacity of the feme defendant to enter into the contract, and secondly, irregularity and error in the judgment itself.

Any just defences either party may have had against a recovery on the note, was available while the action was pending, and might then have been set up. It was too late, after the judgment was entered and the opportunity thus lost, to complain or to seek redress by reopening the matter.

They had their day in court, and for two terms failed to suggest, by plea or otherwise, any objection to the claim, of the nature of which they were fully advised by the summons, and their attorney by the production of the note itself before, as well as at the time when judgment was given. The absence of a complaint is not such a defect as to invalidate the judgment, and it was properly entered for the amount and interest claimed in the summons and specified in the note, the foundation of the action. Leach v. R. R. Co., 65 N. C., 486; C. C. P., § 217.

This disposes of the first objection and shuts off all enquiry into the...