Henderson v. Moore

J. R. Henderson v. Sarah Moore.

Henderson v. Moore, 34 S.E. 446 (N.C. 1899)

Court: Supreme Court of North Carolina · State Highest Courts
Decided: December 5, 1899
Judges: Eaiecloth
Citations: 34 S.E. 446125 N.C. 3831899 N.C. LEXIS 224

Headnotes

Judgment. Erroneous, Appeal — Judgment Irregular, Motion in the Cause. 1. If a judgment is erroneous, that is, contrary to law, the remedy is by appeal; if irregular, that is, contrary to the course and practice of the courts, the remedy is by a motion in the cause made within a reasonable time. 2. A court of equity remedies neither, when jurisdiction exists, and no fraud is alleged.

Summary

Civil, ActioN to correct a former judgment of tbe Court, and to stay the execution in the meantime, heard before Shaiu, J., at Fall Term, 1899, of Wilkes Superior Court. Sarah Moore had sued one N. 0. Anderson in the Justice’s (Hurt for a steer, and recovered judgment against Anderson, who appealed to the Superior Court, and gave Henderson as security on the bond to stay execution in sum of $25. Sarah Moore again got judgment in Superior Court for $10, the value of the steer and costs. Judgment was rendered against Henderson, surety on the stay bond, for $10 and the costs at Fall Term, 1890, which together amounted to about $80, and for which execution issued against Henderson, who institutes this present action for his relief. A temporary order of restraint was granted, which at the hearing was dissolved and the case dismissed, on the ground that the plaintiff had mistaken his remedy. Plaintiff excepted, and appealed.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Eaiecloth

*384 Eaiecloth, C. J.

The defendant in 1896 obtained a judgment against N. 0. Anderson on appeal from the court of a Justice of the Peace. The plaintiff was one of the sureties on the appeal bond, who' now alleges that the judgment was for an amount in excess of his liability on said appeal bond, and seeks injunctive relief against an execution issued on the said judgment.

Every judgment of a court, having jurisdiction, is presumed to have been entered agreeably to law, and until reversed or vacated, is binding on all parties to the action. Idiots, lunatics, etc., are no exception to the rule.

Brittain v. Mull, 99 N. C., 483, 492 . If a judgment is erroneous, that is, contrary to law, the remedy is by an appeal. If it be irregular, that is, contrary to the course and practice of the court, the remedy is by a motion in the cause made within a .reasonable time.

Foard v. Alexander, 64 N. C., 69 ;

Neville v. Pope, 95 N. C., 346; Ward v. Lowndes, 96 N. C., 367 . A court of equity does not act on the ground that a judgment at law is erroneous or irregular, when jurisdiction exists and no fraud is alleged, but it proceeds upon its own conscientious view of the merits of the matter presented.

The plaintiff in this case did not appeal to correct an error, if any was committed, nor move in the action in which judgment was entered to correct any irregularity, if there was any. He has simply misconceived his proper remedy.

Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

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Relies on it most ⓘ

Mills v. Richardson81 S.E.2d 409 (N.C. 1954)
Cameron v. McDonald6 S.E.2d 497 (N.C. 1940)
Spalding Division of Questor Corp. v. DuBose265 S.E.2d 501 (N.C. Ct. App. 1980)
Reynolds v. Lloyd Cotton Mills99 S.E. 240 (N.C. 1919)
Abernethy Land & Finance Co. v. First Security Trust Co.196 S.E. 340 (N.C. 1938)
Wynne v. Conrad17 S.E.2d 514 (N.C. 1941)

Most recent

Spalding Division of Questor Corp. v. DuBose265 S.E.2d 501 (N.C. Ct. App. 1980)
Mills v. Richardson81 S.E.2d 409 (N.C. 1954)
Wynne v. Conrad17 S.E.2d 514 (N.C. 1941)
Cameron v. McDonald6 S.E.2d 497 (N.C. 1940)
Abernethy Land & Finance Co. v. First Security Trust Co.196 S.E. 340 (N.C. 1938)
Pence v. Price192 S.E. 99 (N.C. 1937)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 4

Depth	Case	Cited by
	Neville v. Pope, 95 N.C. 346 (1886)	25
	Ward v. Lowndes, 2 S.E. 591 (N.C. 1887)	19
	Brittain v. Mull, 6 S.E. 382 (N.C. 1888)	10
	Foard v. Alexander, 64 N.C. 69 (1870)	10

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