Hinton v. . Whitehurst

*102 Barnhill, J. To procure the cancellation of a judgment it is not sufficient to merely allege that it is void. The complaint must state the facts upon which that conclusion is based, so that the court may determine whether the facts alleged, if supported by evidence, in fact rendered the judgment invalid. The complaint must contain “a plain and concise statement of the facts constituting a cause of action.” C. S., 506. The mere allegation of the conclusion which the pleader conceives should' be drawn from the evidence he intends to offer is insufficient. Hartsfield v. Bryan, 177 N. C., 166, 98 S. E., 379; Eddleman v. Lentz, 158 N. C., 65, 73 S. E., 1011. In the instant case the judgment below must be affirmed unless the complaint sets forth with some reasonable degree of particularity the facts upon which the plaintiff relies to establish the invalidity of the judgment. Whether a judgment is void presents a mixed question of law and fact and without a statement of the facts the court is unable to determine that plaintiff has a good cause of action. This brings us to a consideration of the allegations contained in paragraph six of the complaint. To fully understand the allegations therein it is necessary to consider the cases therein referred to. In re Hinton, 180 N. C., 213, is an appeal by the propounder, the plaintiff herein, from a judgment of the Superior Court of Pasquotank County, setting aside the will of John L. Hinton and affirms the decision below. Whitehurst v. Hinton, 209 N. C., 392, is “an action for an accounting by the defendants to the plaintiffs for rents and profits received by the defendants (plaintiff herein) from lands described in the complaint, and owned by the plaintiffs and defendants as tenants in common since the death of John L. Hinton in 1910.” Judgment therein was entered at the June Term, 1934, Pasquotank Superior Court. The judgment which the plaintiff seeks to invalidate was rendered at the May Term, 1934, Pasquotank Superior Court, in an action against the plaintiff herein for maladmiliistration of the estate of John L. Hinton and to recover funds belonging to said estate wrongfully retained by the plaintiff herein under credits claimed by him in his account, to which the court adjudged he was not entitled.' The judgment set out in the complaint was not “predicated upon the decision of the Supreme Court of North Carolina in the case of In re Hinton” and has no relation thereto, except that it involves the same estate. Nor did the opinion in Whitehurst v. Hinton, supra, in legal force and effect render the judgment complained of null and void. It likewise has no relation to the judgment set out in the complaint except that it involves matters relating to the same estate. It, therefore, appears that the allegations contained in paragraph six of the complaint amount to nothing more than a statement that under the law declared *103 in Whitehurst v. Hinton, supra, tbe plaintiff herein, bad be been so advised, would bave bad a valid defense in tbe cause in wbicb tbe judgment set out in tbe complaint was rendered. Tbis is not conceded. Even so, tbe judgment rendered by a court of competent jurisdiction in an action properly before it is not rendered void by reason of tbe fact tbat tbe court entered tbe judgment under a misapprehension of tbe correct principles of law. Tbe proper remedy was by appeal. Finger v. Smith, 191 N. C., 818, 133 S. E., 186; Phillips v. Ray, 190 N. C., 152, 129 S. E., 177. It affirmatively appears in tbe complaint tbat tbe judgment therein set out was rendered by a court having jurisdiction of tbe subject matter and of tbe parties and was rendered according to tbe course and practice of tbe court. Tbe complaint fails to state any facts wbicb would tend to vitiate or nullify tbis judgment. While we find nothing in tbe complaint, or in tbe cases therein cited, wbicb would indicate tbat tbe judge who signed tbe judgment did not apply proper legal principles in arriving at bis conclusions upon wbicb be based tbe judgment, we may concede tbat be did, and yet it will not avail tbe plaintiff. Such action on tbe part of tbe court does not invalidate tbe judgment. After a careful consideration of tbe complaint, including tbe cases cited therein, we are of tbe opinion tbat tbe judgment below must be Affirmed. Devin, J., took no part in tbe consideration or decision of tbis case.