Caviness v. . Hunt
Supreme Court of North Carolina
Appeal by defendant from Bay, J., at September Term, 1920, of Guilford. This is an action brought in the Superior Court of Guilford County to set aside a judgment rendered in Granville County in favor of the defendant in this action against the 'plaintiff herein as indorser on a note, on the ground that the summons in the action was not served on the defendant, although the return of the sheriff shows service.
Read the full summary
Appeal by defendant from Bay, J., at September Term, 1920, of Guilford. This is an action brought in the Superior Court of Guilford County to set aside a judgment rendered in Granville County in favor of the defendant in this action against the 'plaintiff herein as indorser on a note, on the ground that the summons in the action was not served on the defendant, although the return of the sheriff shows service. The plaintiff also alleges that the judgment has been docketed in Guilford County, and is a cloud on his title to a tract of land, and facts which would constitute a meritorious defense…
1Opinion of the CourtAlleN, J.
It makes little difference whether this action is called one to remove a cloud from title or to invoke the' aid of a court of equity to prevent an injustice, its purpose is- to set aside a judgment, regular on its face, and rendered on process stowing service, and under sucb conditions tbe law furnishes a complete and adequate remedy by motion in tbe original action.
Tbe authorities in support of this principle are numerous, and it is correctly stated in Stocks v. Stocks, 179 N. C., 288, as follows: “Where it appears that summons has been served, when, in fact it has not been, tbe remedy is by…
2Cases cited13 opinions
- Doyle v. . Brown, GuardianSupreme Court of North Carolina · 1875
- Rackley v. RobertsSupreme Court of North Carolina · 1908
- Mason and Another v. . MilesSupreme Court of North Carolina · 1869
- Glisson v. . GlissonSupreme Court of North Carolina · 1910
- Whitehurst v. Merchants & Farmers Transportation Co.Supreme Court of North Carolina · 1891
8 more not listed; retrieve them via the Exa API.
3Cited by10 opinions
- Harrington v. RiceSupreme Court of North Carolina · 1957
- Dunn v. . WilsonSupreme Court of North Carolina · 1936
- East Carolina Lumber Company v. WestSupreme Court of North Carolina · 1958
- Adams v. . CleveSupreme Court of North Carolina · 1940
- King v. . R. R.Supreme Court of North Carolina · 1922
5 more not listed; retrieve them via the Exa API.