North Carolina Joint Stock Land Bank of Durham v. Kerr

CoNNOR, J. This is an action to recover of the defendants, J. L. Kerr, and his wife, Sadie A. Kerr, the amount of their indebtedness to the plaintiff, as alleged in the complaint, and to have the amount of the judgment which the defendant, J. L. Kerr, has recovered of the plaintiff in the Superior Court of Sampson County applied as a payment on the judgment in this action. In order that it may have the relief prayed for with respect to said judgment, the plaintiff prays that the assignment of the judgment by the defendant, J. L. Kerr, to the defendants, Geo. E. Butler, Algernon Butler and James S. Kerr, be declared void and set aside, and that the defendant, L. 0. Parker, sheriff of Sampson County, be restrained and enjoined from selling under execution on said judgment, its lands in Sampson County. The action is in the nature of an action for an accounting, and was begun and was pending in the Superior Court of Durham County, when the judgment overruling the demurrer, and containing the temporary restraining order was rendered. The plaintiff is a corporation, organized and doing business under the laws of the United States, with its principal office in the city of Durham, in Durham County, North Carolina. The defendants are citizens of this State, and residents of Sampson County. Durham *615 County is the proper venue for the trial of the action (C. S., 469, Mortgage Co. v. Long, 205 N. C., 533, 172 S. E., 209, Smith-Douglass Co. v. Honeycutt, 204 N. C., 219, 167 S. E., 810), and the Superior Court of said county has jurisdiction of the action, certainly, as to the defendants, J. L. Kerr and his wife, Sadie A. Kerr. The plaintiff does not in its complaint attack the judgment which the defendant, J. L. Kerr, has recovered against it in the Superior Court of Sampson County, or attempt to impeach its validity. It concedes that said judgment is conclusive and is not subject to any defense which it may have had the right to interpose in the action in which it was rendered. The principle that the validity of a judgment may be challenged by a party to the action in which it was rendered, and that an execution to enforce such judgment may be recalled or set aside, only by a motion in the action in which the judgment was rendered, and not by an independent action, is not applicable in the instant case. The principle is applicable only where the party against whom the judgment was rendered, seeks to attack the judgment on the ground that on the facts alleged, the judgment is void or voidable. The contention of the defendants that the Superior Court of Durham County was without jurisdiction of this action cannot be sustained. Nor can the contention of the defendants that there is a misjoinder in the complaint of parties and causes of action, be sustained. The principal relief sought in the action by the plaintiff is against the defendant, J. L. Kerr and his wife, Sadie A. Kerr. The relief sought against the other defendants is but incidental to the relief sought against their codefendants, and may be had in this action. All the defendants are proper and necessary parties to the action. C. S., 456. This is an action for an accounting between the plaintiff and the defendant, J. L. Kerr, who has a judgment against the plaintiff, which he is seeking to enforce by execution. In view of the insolvency of the said defendant, the plaintiff is entitled to have the amount of said judgment, if the assignment is declared void and set aside, applied as a payment on the indebtedness of said defendant to the plaintiff, and to that end to have the defendants restrained and enjoined until the final hearing from collecting the judgment by execution. The facts alleged in the complaint are sufficient to constitute a cause of action. See Wright v. Mooney, 28 N. C., 23; Noble v. Howard, 3 N. C., 14; Odom v. Attaway (Ga.), 157 S. E., 871, 15 C. J., 1145, section 597. There is no error in the judgment. It is Affirmed.