Shaver v. Shaver
| Decision Date | 26 June 1956 |
| Docket Number | No. 666,666 |
| Parties | Mary K. SHAVER v. Floyd N. SHAVER. |
| Court | North Carolina Supreme Court |
Haywood & Denny, Durham, for plaintiff Mary Shaver Carpenter, appellant.
Oscar G. Barker and Reade, Fuller, Newsom & Graham, Durham, for Stanley M. Carpenter, movant.
Ludlow T. Rogers, Durham, for defendant Floyd N. Shaver, appellant.
The movant, Carpenter, is a stranger to this cause. He is neither party nor privy.
The general rule is that a stranger to the record, who is neither a party nor a privy to the action, unless authorized by statute, ordinarily has no standing to vacate a judgment by a motion in the cause. Smith v. City of Newbern, 73 N.C. 303; Edwards v. Phillips, 91 N.C. 355; Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; In re Hood ex rel. Carolina State Bank of Gibson, 208 N.C. 509, 181 S.E. 621; 49 C.J.S., Judgments, § 293, p. 540; 31 Am. Jur., Judgments sec. 722; Annotations: 99 A.L.R. p. 1310; 12 A.L.R.2d p. 727.
This fatal defect appears on the face of the record. This being so, it is immaterial whether notice of hearing on Carpenter's motion was properly served on plaintiff and defendant. This Court takes notice ex mero motu that Carpenter cannot proceed with his motion and will order it dismissed. Cf. Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; Watson v. Lee County, 224 N.C. 508, 31 S.E.2d 535; Aiken v. Sanderford, 236 N.C. 760, 73 S.E. 2d 911.
In accordance with this opinion, the lower court will enter an order dismissing Carpenter's said motion.
Docketed as No. 674, Fall Term, 1955, this appeal was carried over and docketed as No. 666, Spring Term, 1956. This appeal, and the appeal in Carpenter v. Carpenter, N.C., 93 S.E.2d 617, were argued together at Fall Term, 1955. As will be observed, in Carpenter v. Carpenter, an independent action for annulment, Carpenter (the movant herein) undertakes to attack collaterally the same divorce decree.
Reversed.
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Carpenter v. Carpenter
...he is a stranger to the divorce action and cannot intervene therein and attack the divorce decree by motion in the cause. Shaver v. Shaver, N.C., 93 S.E.2d 614. But it should be borne in mind that the only question before us is whether plaintiff can collaterally attack the divorce decree on......
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Shaver v. Shaver
...rule that strangers to the record ordinarily have no standing on which to base an application to vacate a judgment. Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614. Carpenter's third effort to vacate the judgment was by a second motion in the Shaver v. Shaver cause, made while the proceedings......
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Collins v. Simms, 32
...and to dissolve the permanent injunction therein entered, is correct, was not appealed from by movants, and is affirmed. Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614. That part of Judge Bone's judgment denying defendant's motion to vacate Judge Hooks' judgment by default final cannot be su......
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Manning v. State Farm Mutual Automobile Insurance Co., Civ. No. 2193
...North Carolina procedure would permit State Farm to directly attack the judgments by motion in the cause. See: Shaver v. Shaver, 244 N.C. 309, 93 S.E.2d 614 at 615 (1956). Yet, the North Carolina Supreme Court has said that judgments of any court can be impeached by strangers to them for fr......