S. Lowman & Co. v. Ballard
Supreme Court of North Carolina
Appeal by defendant from Shaw, J., at April Term, 1914, of AwsoN. Motion to set aside judgment, beard on appeal from a justice’s court.
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Appeal by defendant from Shaw, J., at April Term, 1914, of AwsoN. Motion to set aside judgment, beard on appeal from a justice’s court. On tbe bearing it appeared tbat in 1911 plaintiff instituted an action on account against defendant, before a justice of tbe peace in said county, and on 16 March, 1911, recovered judgment for $173.75, defendant not appealing at tbis time; tbat defendant instituted a civil action against plaintiff to set aside said judgment, claiming tbat be owed plaintiff nothing and tbat be bad never been served with summons in said cause, and, for many months after its…
1Opinion of the CourtHoke, J.
\On tbe facts appearing of record, and in like case whenever tbe remedy is available to him, tbe procedura open to defendant is by motion before tbe justice who tried tbe cause, j This was virtually held on a former appeal between tbe parties, 163 N. C., 486, and tbe position is in accord with our decisions on tbe subject. Thompson v. Notion Co., 160 N. C., 519; Clark v. Mfg. Co., 110 N. C., 111; Whitehurst v. Transportation Co., 109 N. C., 342; McKee v. Angel, 90 N. C., 60.
In Thompson v. Notion Co., supra, that being a case where service bad been regularly made by publication and defendant…
2Cases cited10 opinions
- McKee v. . AngelSupreme Court of North Carolina · 1884
- Massie v. . HaineySupreme Court of North Carolina · 1914
- Whitehurst v. Merchants & Farmers Transportation Co.Supreme Court of North Carolina · 1891
- Gilpin v. . SavageNew York Court of Appeals · 1911
- Clark v. Deloach Mills Manufacturing Co.Supreme Court of North Carolina · 1892
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