Gallop v. . Allen

18 S.E. 55, 113 N.C. 24

• Court: Supreme Court of North Carolina
• Decided: September 5, 1893
• Status: Published

Opinion

MacRae, J.:

Assuming the affidavit of the plaintiff to be true, the judgment rendered by the Justice was irregular and voidable.

The remedies open to defendant in that action, the plaintiff herein, were a motion before the Justice who rendered the judgment, or his successor in office, to set aside the judgment, or a writ of recorda/ri in the nature of a writ of false judgment in the Superior Court.

If it had been alleged that the judgment was obtained by fraud, an action to set it aside would have been the proper procedure.

The subject has been so recently discussed and explained that it will be unnecessary now to do more than refer to King v. Railroad, 112 N. C., 318, and Whitehurst v. Transportation Co, 109 N. C., 342. As an action did not lie to vacate the judgment, his Honor properly dissolved the restraining order and denied the application for an injunction.

Affirmed.