Williamson v. Hartman

• Decision Date: 28 February 1885
• Citation: Williamson v. Hartman, 92 N.C. 236 (N.C. 1885)
• Court: North Carolina Supreme Court
• Parties: J. A. WILLIAMSON, Administrator, v. C. A. HARTMAN et als.

92 N.C. 236

J. A. WILLIAMSON, Administrator,

v.C. A. HARTMAN et als.

Supreme Court of North Carolina.

February Term, 1885.

MOTION in the cause heard before Gilmer, Judge, at Spring Term, 1884, of DAVIE Superior Court.

His Honor refused the motion and the defendant appealed.

No counsel for plaintiff.

Messrs. Coke & Williamson and Clement & Gaither, for the defendants .

MERRIMON, J.

It appears that Shadrick Etchison died intestate in the county of Davie in the month of March, 1861. At the Spring Term, 1861, of the late court of equity of that county, his heirs-at-law, one of whom was the appellant in this case, then an infant, filed a petition for the purpose of selling the lands that descended to them from their ancestor named for partition. In that case, the appellant sued by his next friend, Orrell Etchison. At the term of the court mentioned, the court granted a decree directing a sale of the land according to the prayer of the petitioner.

The land was afterwards sold by the clerk and master of the court, and Orrell Etchison became the purchaser of the “Home tract,” and Thomas Furches became the purchaser of the balance.

At the Fall Term, 1861, of the court, the sale of the land was confirmed by proper decree, and an order was made directing the clerk and master to collect the notes for the purchase money when they became due, and after paying the costs in that behalf, to distribute the funds among the heirs-at-law according to their respective rights. The purchase money remained unpaid in 1870.

Orrell Etchison was appointed administrator of Shadrick Etchison named above, in June, 1861. At the Spring Term, 1870, of the Superior Court of the county mentioned, he filed his petition against the heirs-at-law of his intestate, the petitioners in the petition first above mentioned, in which he set forth in substance, what had been done in the cause in equity above mentioned; that the purchase money for the land had not been paid; and that the proceeds of the sale of the land were necessary to make assets in his hands to pay the debts of his intestate. This petition seems to have been a petition in the cause in which the land was sold for partition. A summons was issued in the action or proceeding brought by the administrator against the heirs-at-law including the appellant, then an infant, returnable to the last mentioned term of the court. Some of the heirs who were of age accepted service of the summons, on others it was served, and as to the appellant, he was named in the summons, and the same was served upon him, by delivering a copy thereof to him, and at the term of the court to which it was returnable, a guardian ad litem was appointed for him, and he was also named as a defendant in the petition. At that term, there being no objection, so far as appears, the court granted the prayer of the petitioner, and a decree to the effect that the administrator should use and apply so much of the proceeds of the sale of the land as might be necessary to pay the debts of his intestate, and costs of administration, and account for any surplus to the heirs-at-law was granted.

Afterwards, at Spring Term, 1878, of the court, a further order was made in the action, directing an account to be taken to ascertain whether the said Orrell Etchison, the administrator, and who had purchased the the “home tract” of the land, had properly disbursed in payment of the debts of his intestate and the costs of administration, the amount owed by him of the purchase money mentioned.

The account so rendered was taken and report thereof was made, and was considered by the court. It was then further decreed that the Clerk of the court should execute to the purchaser of the land a proper deed therefor upon the payment of the balance of the purchase money ascertained to be due, $115.85. The Clerk, shortly thereafter, made the deed, reciting therein the payment of the sum of money mentioned, and the action was no longer continued on the current dockets of the court, until at the Fall Term of the court of 1880, when, upon the motion of the appellant, it was brought forward and placed on the docket for the purpose of the motion then made by him.

The appellant then moved to set aside the judgments entered in 1870 and 1878, for irregularity, and assigned as grounds for such irregularity that he was an infant at the time the proceedings on the part of the administrator were begun, and the orders and judgments therein were entered; that no service of a summons was made upon his guardian ad litem, nor was any defence made in his behalf. He assigned as further grounds of his motion, that the judgments mentioned were fraudulent and void, stating facts in his affidavit tending to show fraud. He also moved to make the administrator de bonis non of Shadrick Etchison a party, the administrator having died.

The court denied these motions; the appellant excepted and appealed to this court.

It is true, as the counsel for the appellant insisted on the argument, that a motion in the action to set aside the judgment for irregularity will be entertained by the court, if it shall be made within a reasonable period after it was granted. This, however, does not imply that every judgment affected in any degree, directly or indirectly, by some or any irregularity in the course of the action leading to it, will be set aside. Some irregularities are unimportant and do not affect the substance of the action, or the proceedings in it; there are others of more or less importance, that may be waived or cured by what may take place or be done in the action after they happen; and there are yet others so serious in their nature as to destroy the efficacy of the action and render the judgment in it inoperative and void. Whether the...