Cardwell v. . Cardwell
Supreme Court of North Carolina
Motion to set aside a judgment, for want of service of ‘the mesne process in the action, made before Towrgee, J., at ■Spring Term 1870, of Eockingham Court. The writ had been returned to the Clerk’s office, “ exe-•euted on 18th Nov. 1868,” and upon the 9th December thereafter judgment was rendered for want of an answer, •&c. In January 1869 the defendants became bankrupt, and upon the 11th March 1870, notice of this motion was given by the assignee.
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Motion to set aside a judgment, for want of service of ‘the mesne process in the action, made before Towrgee, J., at ■Spring Term 1870, of Eockingham Court. The writ had been returned to the Clerk’s office, “ exe-•euted on 18th Nov. 1868,” and upon the 9th December thereafter judgment was rendered for want of an answer, •&c. In January 1869 the defendants became bankrupt, and upon the 11th March 1870, notice of this motion was given by the assignee. Both parties filed affidavits npon the question, and at Spring Term 1870 the following order was made: “ On reading and filing the accompanying…
1Opinion of the CourtBeade, J.
If there was service of summons upon the defendant, the judgment was regular and valid; if there was no service, the judgment was irregular, and ought to be vacated. Upon the motion to vacate, whether there had been service was a question of fact for his Honor, and from his finding of the fact there could be no appeal. We can no more review the finding of a Judge when it is his province to find facts, than we can review the finding of a jury.
In this case, the testimony of the witnesses on both sides is sent up : the testimony on one side tending to show that there was service, and the…
2Cases cited1 opinion
- Harper v. . SpainhourSupreme Court of North Carolina · 1870
3Cited by7 opinions
- Branton v. . O'BriantSupreme Court of North Carolina · 1885
- King v. Wilmington & Weldon RailroadSupreme Court of North Carolina · 1893
- Collins v. . GilbertSupreme Court of North Carolina · 1871
- Perry v. . WhitakerSupreme Court of North Carolina · 1877
- State v. BiggsSupreme Court of North Carolina · 1944
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