Hearon ex rel. Willey v. Hearon

Court of Appeals of North Carolina

Hearon ex rel. Willey v. Hearon

261 S.E.2d 9, 44 N.C. App. 361, 1979 N.C. App. LEXIS 3256

CourtCourt of Appeals of North Carolina

DecidedDecember 18, 1979

DocketNo. 7929SC384

StatusPublished

Cited by5 cases

This text of 261 S.E.2d 9 (Hearon ex rel. Willey v. Hearon) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hearon ex rel. Willey v. Hearon, 261 S.E.2d 9, 44 N.C. App. 361, 1979 N.C. App. LEXIS 3256 (N.C. Ct. App. 1979).

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Opinion

ARNOLD, Judge.

Plaintiff correctly argues that it was improper for the trial judge to collaterally review the competency proceeding, and that the defendant had no standing to attack the determination of incompetency.

Defendant’s argument that her opposition to plaintiffs motion for substitution was not a collateral attack upon the order appointing a general guardian is untenable. Black’s Law Dictionary 327 (Rev. 4th ed. 1968) defines a collateral attack upon a judicial proceeding as “an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.” It is clearly the defendant’s intention here to avoid the substitution of the real party in interest, see G.S. 1A-1, Rule 17(a), the general guardian, G.S. 1A-1, Rule 17(b)(1), by attacking the validity of the proceeding in which the general guardian was appointed. This she cannot do. Just as a stranger to a proceeding may not attack the judgment in the proceeding directly, Card v. Finch, 142 N.C. 140 (1906), he may not bring a collateral attack upon the judgment. The same reasoning applies in both instances. “Persons who are not parties or privies and do not, upon the record, appear to be affected, will not be heard upon a motion to vacate a judgment. They have no status in Court. No wrong has been done them by the Court.” Id. at 148-49 (emphasis in original). “If the parties and privies are content to permit a judgment to stand, considerations of sound public policy require that strangers to the record or in-termeddlers who have no justiciable grievance to be righted should not be permitted to assail the judgment.” Shaver v. Shaver, 248 N.C. 113, 102 S.E. 2d 791 (1958).

The order appointing Sarah Bartlett Hearon Bondy as general guardian is regular on its face, and no reason appears why the general guardian should not be substituted as plaintiff. See G.S. 1A-1, Rule 17(b)(1). The trial court’s order denying plaintiff’s motion for substitution is error, and accordingly is

Reversed.

Judges Clark and Erwin concur.

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ARNOLD, Judge.

Plaintiff correctly argues that it was improper for the trial judge to collaterally review the competency proceeding, and that the defendant had no standing to attack the determination of incompetency.

Defendant’s argument that her opposition to plaintiffs motion for substitution was not a collateral attack upon the order appointing a general guardian is untenable. Black’s Law Dictionary 327 (Rev. 4th ed. 1968) defines a collateral attack upon a judicial proceeding as “an attempt to avoid, defeat, or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.” It is clearly the defendant’s intention here to avoid the substitution of the real party in interest, see G.S. 1A-1, Rule 17(a), the general guardian, G.S. 1A-1, Rule 17(b)(1), by attacking the validity of the proceeding in which the general guardian was appointed. This she cannot do. Just as a stranger to a proceeding may not attack the judgment in the proceeding directly, Card v. Finch, 142 N.C. 140 (1906), he may not bring a collateral attack upon the judgment. The same reasoning applies in both instances. “Persons who are not parties or privies and do not, upon the record, appear to be affected, will not be heard upon a motion to vacate a judgment. They have no status in Court. No wrong has been done them by the Court.” Id. at 148-49 (emphasis in original). “If the parties and privies are content to permit a judgment to stand, considerations of sound public policy require that strangers to the record or in-termeddlers who have no justiciable grievance to be righted should not be permitted to assail the judgment.” Shaver v. Shaver, 248 N.C. 113, 102 S.E. 2d 791 (1958).

The order appointing Sarah Bartlett Hearon Bondy as general guardian is regular on its face, and no reason appears why the general guardian should not be substituted as plaintiff. See G.S. 1A-1, Rule 17(b)(1). The trial court’s order denying plaintiff’s motion for substitution is error, and accordingly is

Reversed.

Judges Clark and Erwin concur.

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261 S.E.2d 9, 44 N.C. App. 361, 1979 N.C. App. LEXIS 3256, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hearon-ex-rel-willey-v-hearon-ncctapp-1979.

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