Johnson v. Johnson.

55 S.E. 341, 142 N.C. 462, 1906 N.C. LEXIS 272

Opinion

BeowN, J.

The petitioner, Dark, bases his right to intervene upon the ground that “the' affiant is the owner of certain real property, which is a part of the property described in the complaint in this action,- having paid a full and fair price for the same and taken a deed therefor from IT. A. London, W. D. Siler, and R. TL Hayes, who, as he is informed and believes, had purchased the same from the plaintiff, and that as such owner he desires to interplead in this cause and set up his rights.” His Honor denied Dark’s application to intervene on the hearing of the plaintiff’s motion, and then adjudged “that so much of the decree made at May Term, 1905, as declares the marriage of Adella V. Johnson and W. Mángum Johnson to be null and void, to be set aside, the same being irregular and void, the pleadings not being verified as required by statute, the Court had no jurisdiction to make such decree, and the parties are allowed to resume their former relation as husband and wife.”

The petitioner, Dark, had no right to be heard upon this motion. Pomeroy Code Rem., secs. 320 and 321. He was not a party to the action, and cannot be heard on a motion to set aside the decree made by the plaintiff upon the ground that the Superior Court had acquired no jurisdiction. If it should turn out upon a trial that his title is affected because the Court set aside a decree it had no jurisdiction to render, it is his misfortune.

This is a proceeding for divorce. Lea v. Lea, 104 N. C., 603. It is so held in this case in the concurring opinion on the former appeal,.which the writer approves. The affidavit required in divorce cases being jurisdictional, it follows that in the absence of it the Court was powerless to make the decree, which has therefore been properly set aside. Hopkins v. Hopkins, 132 N. C., 22.

Appeal Dismissed.