Foard v. . Alexander
Supreme Court of North Carolina
Aotior to set aside an execution and vacate a judgment ■for irregularity, tried before Logan, J., on demurrer, at Spring Term 1869 of Oajbaubtts Court. This proceeding began in April 1869, by a petition to the Judge of the Ninth District.
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Aotior to set aside an execution and vacate a judgment ■for irregularity, tried before Logan, J., on demurrer, at Spring Term 1869 of Oajbaubtts Court. This proceeding began in April 1869, by a petition to the Judge of the Ninth District. The plaintiffs allege that the defendants brought suit against them to April Term 1861, of Cabarrus county court; that the case was thence transferred, under an act of Assembly, to the Superior Court of Law for that county; that at Eall Term 1862, there was an entry on the docket, “judgment by default,” and that said judgment (if the said entry is to be…
1Opinion of the CourtDun Wan, J.
(After stating the facts as above.) Whether the judgment was irregular (assuming the facts stated to be true) may be doubtful: Davis v. Shaver, Phil. 18; Moore v. Mitchell, Ib. 304; but the execution issuing on the judgment after it became dormant, as is alleged, was: Simpson v. Sutton, Phil. 112.
The first question however, is whether the plaintiffs have taken the proper course to obtain the relief desired, and to which it is assumed they are entitled. Under our former practice the remedy against an irregular judgment or execution, was by an audita querela, or’ by, what was a substitute .for…
2Cases cited1 opinion
- Mason and Another v. . MilesSupreme Court of North Carolina · 1869
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- Weir v. . WeirSupreme Court of North Carolina · 1928
- Williams v. . DunnSupreme Court of North Carolina · 1912
- Burke v. . StokelySupreme Court of North Carolina · 1871
- Henderson v. . MooreSupreme Court of North Carolina · 1899
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