Peoples v. Norwood
| Decision Date | 28 February 1886 |
| Citation | 94 N.C. 167 |
| Court | North Carolina Supreme Court |
| Parties | L. J. PEOPLES and others v. N. M. NORWOOD. |
This was a motion to set aside a judgment heretofore rendered in the Superior Court of GRANVILLE county, for irregularity, heard by Shepherd, Judge, at Spring Term, 1885, of said Court.
The facts were as follows:
It appears that on the 27th day of November, 1874, the Court of Probate of the county of Granville, made an order whereof the following is a copy:
“Whereas, Nathaniel M. Norwood, guardian to Charles H. Gregory, Robert H. Gregory and Wm. D. Gregory, has failed to exhibit his account to the Judge of Probate as required by §§55 and 56 of an act concerning guardians and wards: It is therefore ordered by the Court, that the said Nathaniel M. Norwood do make his personal appearance, and file such returns in the office of the Clerk of the Superior Court and Probate Judge, at Oxford, on Tuesday, the 22d day of December, 1874, or show cause why an attachment should not issue against him as prescribed by law.”
A copy of this order was duly served upon the said Nathaniel M. Norwood, who is the present appellee, and he appeared in obedience to the same.
On the docket of the Probate Court is the following entry:
+------------------------+
¦“PROBATE COURT ¦)¦
+----------------------+-¦
¦vs. ¦)¦
+----------------------+-¦
¦NATHANIEL M. NORWOOD. ¦)¦
+------------------------+
Order to return an annual account, returnable December 22nd, 1874. Transferred to the civil issue docket.”
At the Spring Term, 1875, of the Superior Court of the county named, the matter above mentioned appears upon the docket of that Court stated thus:
+-----------------------------------------------------------+
¦ ¦)¦L. J. PEOPLES, agent for¦)¦Petition for account¦
+---------+-+------------------------+-+--------------------¦
¦“VENABLE.¦)¦GREGORY and others. ¦)¦and settlement; ¦
+---------+-+------------------------+-+--------------------¦
¦ ¦)¦vs. ¦)¦exceptions to report¦
+---------+-+------------------------+-+--------------------¦
¦HAYS. ¦)¦N. M. NORWOOD, ¦)¦of Probate ¦
+---------+-+------------------------+-+--------------------¦
¦ ¦)¦Guardian. ¦)¦Judge.” ¦
+-----------------------------------------------------------+
Afterwards, at the Special Term, July, 1875, the case again appears with the entry, “Continued; transferred from the Probate Court.” Same counsel marked.
At Fall Term, 1875, the case again appears with same counsel marked. No entries except “Transferred from Superior Court.”
At Spring Term, 1876, the case appears, and the only entry appearing being, “““transferred from the Probate Court.”
At the next term, the same case appears, same counsel marked, with the words: The case was continued on the docket, with same counsel, and same entries, until the Spring Term, 1878, when the word “open” was added. The word “open” was written by Mr. Hays, attorney, who was making entries generally on the docket, while it was being called.
At the next term the judgment was rendered which is sought to be set aside, the same counsel being then marked on the docket, and the following is a copy of the entry thereof:
This cause coming on for hearing at this term of the Court, on appeal from the Probate Court for Granville county, and now being heard before the Court, his Honor, John Kerr, Judge, presiding, and it appearing to the Court that the defendant is indebted to the plaintiffs, Charles H. Gregory, Robert H. Gregory and William D. Gregory, in the sum of one thousand two hundred and ninety-three dollars and fifty cents. It is therefore considered and adjudged by the Court, that the plaintiffs do recover of the defendant, Nathaniel M. Norwood, the sum of one thousand two hundred and ninety-three dollars and fifty cents, with interest on one thousand and fifty-three dollars and twenty-six cents from the first day of this term, and for costs of suit, to be taxed by the clerk, the same to include the sum of ten dollars to B. H. Cozart, clerk, for stating the account.”
Afterwards “an execution was issued upon the judgment on 21st day of November, 1878, and returnable to the next term. The return is, “Not executed by order of plaintiff.” On the costs taxed in said execution was a tax fee for Attorney Venable, and $10 for Cozart, Commissioner.
Another execution issued June 22d, 1880. Returned satisfied as to amount of Court costs, say $38.63, here with paid into office. Sheriff's fee retained. Not executed as to judgment debt and interest, by authority of T. B. Venable, attorney of plaintiff, as will appear by reference to his letter to John W. Hays, attorney for defendant, bearing date 27th September, 1880, which said letter is hereunto appended.”
The letter is as follows:
“OXFORD, N. C., Sept. 27th, 1880.
John W. Hays, Esq.
Another execution issued 12th November, 1880, and was levied on the defendant's land, when further proceedings on the execution were stopped by injunction.
The Court found the following facts:
That Mr. Hays was employed by Mr. Norwood, and appeared for him before the Probate Court. That defendant was dissatisfied with the account as stated by the Probate Judge, and his counsel, Mr. Hays, at his instance, said he would file written exceptions, and moved, either for an appeal, or to have the case transferred to the Superior Court.
The case was transferred to the civil issue docket of the Superior Court. No summons was ever issued, no exceptions were filed until Spring Term, 1875. Mr. Hays continued to appear for Mr. Norwood in the Superior Court. There was no new employment, nor any subsequent contract or conversation between Hays and Norwood about the case. Norwood had actual knowledge that the case had been transferred and was...
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