Ricaud v. Flanner

• Decision Date: 10 March 1903
• Citation: 43 S.E. 543,132 N. C. 62
• Court: North Carolina Supreme Court
• Parties: RICAUD. v. ALDERMAN & FLANNER.

43 S.E. 543

132 N. C. 62

RICAUD.

v.ALDERMAN & FLANNER.

Supreme Court of North Carolina.

March 10, 1903.

judgment—PROCESS TO SUPPORT—RECITALS —CONCLUSIVENESS—FINDINGS OF COURT —RIGHTS OF ASSIGNEES.

1. The power to correct its own records is inherent in every court.

2. Findings of the judge below are conclusive on appeal, if there is any evidence to sustain them.

3. Where the summons in an action against a partnership showed clearly that it was not served on one of the defendants, and there was no other summons or entry on the record, finding of the judge that the defendant was not served was sustained.

4. Recital on a judgment, "It appearing to the court that the summons was duly served on each of the defendants, " may be controverted in a direct proceeding.

5. Assignee of a judgment acquires no greater right than his assignor had.

Appeal from superior court, New Hanover county; Peebles, Judge.

Action by A. G. Ricaud, receiver of the First National Bank of Wilmington, against Alderman & Flanner. Judgment for plaintiff, and from an order setting the same aside so far as it affected the defendant A. J. Flanner as an individual, plaintiff appeals. Affirmed.

Homer J. Clark, who is referred to m the opinion, was appointed receiver in place of A. G. Ricaud, resigned. E. K. Bryan was counsel for plaintiff in the action from its commencement. He purchased the judgment in question from Homer J. Clark, as receiver, along with other assets of the bank.

E. K. Bryan and Junius Davis, for appellant.

Rountree & Carr, J. D. Bellamy, and Stevens, Beasley & Weeks, for appellees.

CONNOR, J. This is a motion made by the defendant A. J. Flanner to set aside a judgment rendered at January term, 1897, of the superior court of New Hanover county. His honor, upon affidavits, inspection of the record, and other competent testimony, found the following facts: The summons was issued November 3, 1894, against the defendants Alderman & Flanner, and returned with the following indorsement thereon: "Executed November 3, 1894, on W. H. Alderman. A. J. Flanner not to be found in county. Received my fees, 60c."—signed by the sheriff. That said summons was not served on defendant. A. J. Flanner. That no other summons ever issued in said action. The rough minutes of April term, 1895, show, in the handwriting of the deputy clerk, this entry, "Alias continued." The bound minute book shows this entry, "Continued." There was no evidence that any alias was ever issued. Said action was continued until January term, 1897, of said court, when a verified complaint was filed, and at said term judgment was signed by the judge presiding, containing the following recital: "And it appearing to the court that the summons in this action was duly served on each of the defendants, " etc. Judgment was rendered that the plaintiff recover of the defendants-the sum of $18,-527.26, etc. That when the judge signed said judgment he did so inadvertently, not having before him any evidence to sustain the find-ing of service of summons on the defendant A. J. Flanner. There was evidence before his honor in regard to the motion to issue execution and the petition filed by Alderman & Flanner in bankruptcy, which we deem immaterial. E. K. Bryan purchased at public sale the judgment from H. J. Clark, who succeeded to the plaintiff's rights. That he purchased at the same time from said Clark other judgments, aggregating, with the one in question, about $150,000, for the sum of $59. That said purchase was made at a sale made for the purpose of closing out the assets of the First National Bank, which was insolvent, and in the hands of a receiver.

This motion is properly made, and is a direct attack upon the integrity of the judgment. It is in fact a motion to correct the record so that it may speak the truth. This power is inherent in every court, and its exercise has been so frequently approved by this court that it would seem unnecessary to cite authorities to sustain it in ...