Wellons v. . Lassiter

157 S.E. 434, 200 N.C. 474, 1931 N.C. LEXIS 364

• Court: Supreme Court of North Carolina
• Decided: March 18, 1931
• Status: Published

Opinion

ClabKSON, J.

Tbe plaintiff in apt time before tbe clerk made a motion to strike out defendants’ answer for tbe reason tbat it was sbam and frivolous under C. S., 510, wbicb is as follows: “Sbam and irrelevant answers and defenses may be stricken out on motion, upon sucb terms as tbe court may in its discretion impose.” Tbis motion was denied by tbe clerk and tbe plaintiff excepted and appealed to tbe Superior Court. Tbe cause being on appeal in tbe Superior Court, tbe court below bad tbe power and authority to bear tbe matter. C. S., 536. Washington v. Hodges, ante, at p. 370.

Tbe court below struck out tbe answer of defendants as being frivolous and gave judgment for plaintiff tbat tbe sum be a specific lien on tbe land, and authorized tbe same to be sold. Tbis judgment was rendered at April Term, 1930. Tbe record discloses tbat no exception or appeal was taken to tbis judgment.

On 16 June, 1930, defendant, W. C. Lassiter, filed an affidavit and made motion and prayed tbat tbe sale of tbe land be enjoined. At November Special Term, 1930, tbe court below made an order and adjudged tbat tbe judgment rendered by Judge Small was irregular and set same aside. From tbis order vacating tbe judgment tbe plaintiff appeals to- tbis Court. We think tbe judgment of Judge Small, if erroneous, tbe defendants should have appealed from same. Tbis they did not do, and tbe judgment of Judge Lyon should be reversed.

A “void judgment” is one tbat has merely a semblance without some essential elements, as want of jurisdiction or failure to serve process or to have party in court, while an “irregular judgment” is one entered contrary to course and practice of court, and an “erroneous judgment” is one rendered contrary to law. Duffer v. Brunson, 188 N. C., 789.

“Erroneous judgment” is one rendered according to course and practice of court, but contrary to law, upon mistaken view of law, or upon erroneous application of legal principles. Finger v. Smith, 191 N. C., 818.

“If a judgment is irregular tbe remedy is by motion in tbe cause made within a reasonable time; if erroneous, tbe remedy is by appeal.” Finger v. Smith, supra, at p. 820, or certiorari.

C. S., 600, relating to mistake, surprise and excusable neglect, has no application. Foster v. Allison Corp., 191 N. C., 166.

In Caldwell v. Caldwell, 189 N. C., at p. 809, we find: “A decision of one judge of tbe Superior Court is not reviewable by another judge. Dockery v. Fairbanks, 172 N. C., 529. Tbe power of one judge of tbe Superior Court is equal to and coordinate witb tbat of another. A judge bolding succeeding terms of a Superior Court bas no power to review a judgment rendered at a former term upon tbe ground tbat sucb judgment is erroneous.” Phillips v. Ray, 190 N. C., 152.

In Baker v. Corey, 195 N. C., at p. 302, is tbe following: “But irregularity alone is not sufficient. In Dufferr v. Brunson, 188 N. C., 789, it is said: ‘It is essential for tbe moving party to show not only tbat be bas acted witb reasonable promptness, but tbat be bas a meritorious defense against tbe judgment. As suggested in Harris v. Bennett, 160 N. C., 339, 347, “Unless tbe Court can now see reasonably tbat defendants bad a good defense tbat would affect tbe judgment, wby should it engage in tbe vain work of setting tbe judgment aside?” Hill v. Hotel Co., ante, 586; Gough v. Bell, 180 N. C., 268; Rawls v. Henries, 172 N. C., 216; Glisson v. Glisson, 153 N. C., 185.’ ” Sutherland v. McLean, 199 N. C., 351.

For tbe reasons given, tbe judgment of tbe court below is Reversed.