Cox v. . Boyden

83 S.E. 246, 167 N.C. 320

• Court: Supreme Court of North Carolina
• Decided: November 5, 1914
• Status: Published

Opinion

HoKEj J.,

after stating the case: In Bank v. Peregoy-Jenkins Co., 147 N. C., 293, the Court held that except by consent or unless authorized by statute a judge was without power to sign a judgment affecting substantial rights of a party litigant in one county when the cause was pending in another, and, this being true, if the judgment objected to was signed without the consent of affiant or her counsel, in the county of Forsyth, when the cause was pending in the county of Surry, it is open to her to question its validity, and whether the same is void or only irregular, our decisions are to the effect that the proper procedure is by motion in the cause. Massie v. Hainey, 165 N. C., 174; Bank v. McEwen, 160 N. C., 414; Calmes v. Lambert, 153 N. C., 248; Roberts v. Pratt, 152 N. C., 731; Rackley v. Roberts, 147 N. C., 201; Flowers v. King, 145 N. C., 234; Becton v. Dunn, 137 N. C., 559.

In reference to the position that this is a judgment in its nature final, to be impeached only by independent action, it was held in Roberts v. Pratt and affirmed in the more recent case of Massie v. Hainey: “While it is very generally recognized that a final judgment can only be impeached for fraud by means of an independent action, this position does not necessarily prevail when a judgment has been procured by fraudulent imposition on the court as to the rendition, or where it has been entered contrary to the course and practice of the court. In such case relief may ordinarily be obtained by motion in the cause, and this procedure, as a rule, is proper and allowable in all cases where courts of the common law would correct their judgment by writs of error coram, nobis or coram nobis; and this is especially true under our present system combining legal and equitable procedure in one and the same jurisdiction.” And on the provision of the statute, Kevisal, sec. 513; Code, sec. 274, requiring that an application to relieve against a judgment for mistake, surprise, or excusable neglect to be instituted within one 3rear, the cases of Calmes v. Lambert, supra, and Becton v. Dunn, supra, and others are to the effect that this limitation as to time applies, as a rule, to judgments which are in all respects regular, and does not obtain as to those which are taken contrary to the course and’ practice of the Court.

On the question of procedure, the case of Bank v. McEwen, supra, is an apt authority in support of defendant’s motion, and in that case Associate Justice Walker, delivering the opinion, said: “A court bas the power to open or vacate a judgment wbicb appears to have been entered by consent or agreement of the parties on adequate grounds, e. g., fraud or mistake or the real absence of consent, if so found.” And tbis principle is also fully recognized in case of Lance v. Russell, 157 N. C., 448.

On authority, therefore, we are of opinion that the defendant was entitled to have her application heard and properly considered, and there was error in declining to entertain the motion from lack of power to set aside the judgment.

This will be certified, to the end that the cause may be considered and determined in accordance with law and the course and practice of the Court.

Error.