Gardner v. Price

Supreme Court of North Carolina

Gardner v. Price

89 S.E.2d 147, 242 N.C. 592, 1955 N.C. LEXIS 628

CourtSupreme Court of North Carolina

DecidedSeptember 21, 1955

StatusPublished

Cited by1 cases

This text of 89 S.E.2d 147 (Gardner v. Price) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gardner v. Price, 89 S.E.2d 147, 242 N.C. 592, 1955 N.C. LEXIS 628 (N.C. 1955).

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Opinion

BáRNHill, C. J.

The appellants in their oral argument rested their case squarely on the contention that the judgment by default final entered in 1944 is void, and that, therefore, they are not barred by lapse of time. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311. This contention cannot be sustained. Where a judge enters a judgment by default final when the complaint will not support anything more than a judgment by default and inquiry, the judgment is irregular and voidable— not void — at the election of the defendants. Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7; Finger v. Smith, 191 N.C. 818, 133 S.E. 186; Hinton v. Whitehurst, 214 N.C. 99, 198 S.E. 579. It is valid until vacated in the manner provided by law.

Furthermore, it is made to appear that in 1942 these defendants employed counsel, appeared, and moved to vacate the judgment here at issue. The motion was heard at the September Term, 1944. Upon said hearing the judge entered judgment denying the motion. Defendants did not except and appeal. They are not entitled to a second bite at the same cherry.

Whether the judgment by default final vacates the deed plaintiff sought to annul is still an open question.

The defendants have slept on their rights — if any they had — and must suffer the consequences. The judgment entered in the court below is

Affirmed.

WiNboene and Higgdsts, JJ., took no part in the consideration or decision of this case.

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BáRNHill, C. J.

The appellants in their oral argument rested their case squarely on the contention that the judgment by default final entered in 1944 is void, and that, therefore, they are not barred by lapse of time. Monroe v. Niven, 221 N.C. 362, 20 S.E. 2d 311. This contention cannot be sustained. Where a judge enters a judgment by default final when the complaint will not support anything more than a judgment by default and inquiry, the judgment is irregular and voidable— not void — at the election of the defendants. Ellis v. Ellis, 190 N.C. 418, 130 S.E. 7; Finger v. Smith, 191 N.C. 818, 133 S.E. 186; Hinton v. Whitehurst, 214 N.C. 99, 198 S.E. 579. It is valid until vacated in the manner provided by law.

Furthermore, it is made to appear that in 1942 these defendants employed counsel, appeared, and moved to vacate the judgment here at issue. The motion was heard at the September Term, 1944. Upon said hearing the judge entered judgment denying the motion. Defendants did not except and appeal. They are not entitled to a second bite at the same cherry.

Whether the judgment by default final vacates the deed plaintiff sought to annul is still an open question.

The defendants have slept on their rights — if any they had — and must suffer the consequences. The judgment entered in the court below is

Affirmed.

WiNboene and Higgdsts, JJ., took no part in the consideration or decision of this case.

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89 S.E.2d 147, 242 N.C. 592, 1955 N.C. LEXIS 628, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gardner-v-price-nc-1955.

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