Moore v. Packer

• Decision Date: 05 December 1917
• Docket Number: 486.
• Parties: MOORE ET AL. v. PACKER ET AL.
• Court: North Carolina Supreme Court

94 S.E. 449

174 N.C. 665

MOORE ET AL. v. PACKER ET AL.

No. 486.

Supreme Court of North Carolina

December 5, 1917

Appeal from Superior Court, Caldwell County; Carter, Judge.

Action by W. C. Moore and Van Wyck Hoke against H. B. Packer and L Harrison. From order dissolving a restraining order against enforcement of a judgment, plaintiffs appeal. Affirmed.

If judgment is erroneous, it is estoppel between parties until corrected by appeal, and if defendants against whom it is rendered wish to attack it for irregularity, it must be done by motion in cause.

This is an action to restrain the collection of a judgment under execution.

On March 12, 1913, Packer and Harrison, the defendants herein instituted their civil action against W. C. Moore in the superior court of Burke county, and the sheriff made return upon the summons as follows:

"Received March 13, 1913. Served March 13, 1913, by reading the within to W. C. Moore. J. P. Icard, Sheriff Caldwell County."

A restraining order was issued in that action, and it was returned as served on W. C. Moore. At the hearing on March 26, 1913, before Judge Webb, an order was entered entitled as against W. C. Moore, Jr., as defendant, in which it was provided that:

"Upon the defendant filing bond in the sum of $200, to be approved by the clerk of Burke superior court, the defendant is permitted to continue his timber cutting operations until the further order of the court."

A bond was made entitled as of W. C. Moore, Jr., defendant, in which W. C. Moore, Jr., was the principal and V. W. Hoke the surety, the condition of which is therein stated as follows:

"The condition of the foregoing obligation is such that the above-bounden W. C. Moore, Jr., has been permitted to continue his timber-cutting operations, as will appear by reference to the order of his honor Jas. L. Webb of this date. Now, if said defendant shall pay all such damages as shall be sustained by the plaintiffs by reason of the order as aforesaid in event that the plaintiffs be declared the owners of the lands in controversy, then this obligation to be void; otherwise to be in full force and effect."

Plaintiff filed his complaint against W. C. Moore, and an answer was filed and verified by W. C. Moore, Jr. The case came on for trial at October term, 1915, at Burke superior court, and at that time the plaintiff stated in open court that W. C. Moore, Sr., was the defendant they were suing, and not W. C. Moore, Jr., and defendant W. C. Moore, Jr., upon motion, was permitted to withdraw his answer. An issue of damages was submitted against W. C. Moore, Sr., and judgment was rendered setting forth that W. C. Moore had failed to make any defense and rendering judgment against the defendant and W. C. Moore, Jr., and V. W. Hoke, surety on the injunction bond in the sum of $200. W. C. Moore, Jr., and V. W. Hoke excepted and gave notice of appeal which was never prosecuted. Execution was issued upon the judgment rendered and attempted to be levied on the property of V. W. Hoke. Thereupon plaintiffs obtained a restraining order against the enforcement of the judgment, which the court on the hearing dissolved, and plaintiffs appealed.

Squires & Whisnant, of Lenoir, for appellants.

Avery & Ervin, of Morganton, for appellees.

ALLEN J.

The plaintiff W. C. Moore, Jr., filed an answer, and entered a general appearance in the former action, and he and his coplaintiff filed the bond conditioned to pay the damages recovered, and both of them excepted to and gave notice of appeal from the judgment...