Gallop v. . Allen
Supreme Court of North Carolina
This was a civil ACTION, commenced in the Superior Court of Currituck County, to vacate and set aside, as null and void, a judgment rendered by a Justice of the Peace of said county in favor of the present defendants and against the plaintiff in this action.
Read the full summary
This was a civil ACTION, commenced in the Superior Court of Currituck County, to vacate and set aside, as null and void, a judgment rendered by a Justice of the Peace of said county in favor of the present defendants and against the plaintiff in this action. The complaint alleged that the summons in the action before the Justice was served upon this plaintiff on the 5th of September, 1892, returnable on the next day at the courthouse in said county before the Justice named; that this plaintiff, then defendant, was sick on the return day and could not attend at the place of trial; that…
1Opinion of the Court
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…
2Cases cited2 opinions
- Whitehurst v. Merchants & Farmers Transportation Co.Supreme Court of North Carolina · 1891
- King v. Wilmington & Weldon RailroadSupreme Court of North Carolina · 1893