Mabry v. . Erwin
Supreme Court of North Carolina
MotioN to set aside a Judgment heard at Fall Term, 1877,. of Buncombe Superior Court, before Schenck, J. The plaintiff obtained a judgment final by default against the defendants at a former term of said Court, in an action based upon a former judgment or decree of the late Court-of Equity.
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MotioN to set aside a Judgment heard at Fall Term, 1877,. of Buncombe Superior Court, before Schenck, J. The plaintiff obtained a judgment final by default against the defendants at a former term of said Court, in an action based upon a former judgment or decree of the late Court-of Equity. His Honor allowed the motion upon the ground that the judgment'was irregular, being of opinion, that the plaintiff was not entitled to said judgment by default without some proof of the former decree made to the Clerk as provided in C. C. P. §217. Prom which ruling the plaintiff appealed."
1Opinion of the Court
An irregular judgment, that is to say, a judgment rendered contrary to the course and practice of the court, may be set aside at any time, even after the term of the court which rendered it. This was not controverted. And the judgment in this case being rendered by default final upon a former judgment, it was supposed by his Honor to be irregular, because contrary to the provision of C. C. P., (46) sec. 217.
His Honor was, however, mistaken in supposing that that section of The Code governed the practice in that case, because it had been suspended by the subsequent statute, Bat. Rev., ch. 18,…
2Cited by10 opinions
- Cook v. . MooreSupreme Court of North Carolina · 1888
- Mann v. . MannSupreme Court of North Carolina · 1918
- McLean v. . McLeanSupreme Court of North Carolina · 1881
- Wynne v. . PrairieSupreme Court of North Carolina · 1882
- Mabry v. . HenrySupreme Court of North Carolina · 1880
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