Brittain v. . Mull

Davis, J., (after stating the case). This is the third time ■that this ease has been before this Court. The first appeal (91 N. C., 498) was from the refusal of the Court below to grant the three motions made at Spring Term, 1883, as set out in this case. The second (94 N. C., 595) was from the refusal to-grant the motions of the plaintiff on the return of the certificate from the Supreme Court in the first appeal. *489 When the second appeal was before this Court, it was said “ that the Clerk, acting as and for the Court,” ought to have decided any question properly presented by the pleadings, and “from his decision either party, if dissatisfied, could appeal.” The Court said: “ Among the questions we can see, the jury having found that the appellant was insane at the time the alleged ‘waiver’ was given in the proceeding collateral to the present one, that he ought to have decided, first, whether or not the alleged ‘ waiver ’ operates as a bar to the appellant’s right of dower; and secondly, could the ‘waiver’ and judgment in the proceeding, other than this referred to, be attacked collaterally in this proceeding, and whether or not, as the petitioner was insane at the time the ‘waiver’ was given, it and the judgment were absolutely void as to her. He ought to have decided these, and perhaps other questions presented, and either party would have had a right to appeal from his decision to the Judge, at Chambers, and the decision of the Judge in that case would have prevailed as the judgment of the Court, unless an appeal should have been taken from his decision to this Court, which might he done.” Upon the last trial before the Clerk, the several questions presented were passed upon by him, and judgment rendered, dismissing the plaintiff’s action. Upon exception and appeal, his judgment was affirmed by the Judge below, and the assignment of errors of law in those exceptions is now the subject of. our review. The plaintiff says there was “ no evidence ” to support the finding of the Clerk in regard to the “ waiver ” of right to dower, and asks that the record be set out in the statement on appeal. This is done, and, upon an inspection, we think there was evidence to support the findings. The record shows that the petition for dower was filed the 9th day of January, 1877; there was an answer and replica *490 tion, and on tide 23d of January an agreement was filed, to the effect that the heirs at law of James Brittain would pay the costs of the application for dower, if the widow would dismiss the same and agree that the land should be sold, and after paying “ the judgment against it,” the balance of the money should be divided ‘b< tween the widow and all the heirs, she to take a child’s part of the money in lieu of her dower,” &c. The plaintiff’s name is not signed to this agreement, but no further action was had upon the petition for dower; and soon thereafter a summons was issued, in the name of “S. E. Mull, administrator of James Brittain, and others, against Marcus Brittain, infant heir of James Brittain,” &c., and a petition for a sale of the land in question was filed in the name of “Sidney E. Mull, administrator of James Brittain, and others, naming them, and among them “Ara Brittain, widow,” against “ Marcus Brittain, infant,” &c. In said petition it is, among other things, alleged “ that the whole of the personal estate was allotted to Ara Brittain, widow of the intestate, as a year’s allowance,” &c. There was the further statement, that “said land was subject, however, to the dower of the plaintiff, Ara Brittain, the widow of the said intestate, which right has heretofore and is hereby waived.” The plaintiff says that “ her name does not appear in the summons in said action, and in the petition, where her name does appear, nothing is said about taking a child’s part,” &c. It is true that her name does not appear in the summons, nor does the name of any of the petitioners except that of S. E. Mull, administrator, &c. The summons is issued in the name of “ S. E. Mull, administrator of James Brittain, and others, against Marcus Brittain,” &c., but in the petition, the names of all the petitioners, including that of the plaintiff, are set out. She was a petitioner, or plaintiff, in that action, not a defendant. *491 “ A plaintiff need not to be brought into Court, he comes in.. A judgment is of no force against a person as plaintiff, unless the record shows him to be plaintiff. If the record shows him to be plaintiff, when, in fact, he was not, then it stands as where the record shows one to be defendant when he is not. In both cases, the record is conclusive until corrected by a direct proceeding for that purpose.” Doyle v. Brown, 72 N. C., 393. It is true, that, in the order of sale, the case is stated by its title, FS. E. Mull, administrator, &c., plaintiffs, against. Mark Brittain, &c., defendants,'” but it refers to the petition, recites the necessity of the sale, &c., and adjudges that the land specified in the petition be sold, without any reservation or exception whatever, and it was so sold, the sale confirmed, and title made. There was no error in the Court below in holding that “ the waiver and judgment could not be attacked collaterally in this proceeding.” This disposes of the 1st, 2d, 3d, 4th,. 5th, 6th and 7th exceptions of the plaintiff, all of which are based upon alleged irregularities or defects, affecting the proceeding, orders and judgments sought to be thus collaterally attacked, and also of the eighth; for the finding of the jury in this action, that the plaintiff waived her right of dower, but that such waiver was void, by reason of plaintiff’s mental incapacity, is not, in any proceedings directly instituted, to vacate or annul the proceedings under which the land was-sold, but is a collateral attack, and cannot be made in this action. If she was insane when the order or judgment was made, however irregular, or erroneous the judgment may have been, it cannot be collaterally brought in question. In a direct proceeding to vacate the judgment, the Court can see, and will see, that no injustice is done. While the judgment stands, the-fact that the plaintiff was insane, does not protect her. Fanshaw v. Fanshaw, Bus., 166; Armfield v. Moore, Ibid., 157; Skinner v. Moore, 2 D. & B., 138; *492 Pigot v. Davis, 3 Hawks, 25; Williams v. Harrington, 11 Ired., 616; Marshall v. Fisher, 1 Jones, 111; Bender v. Askew, 3 Dev., 149; Riggan v. Green, 80 N. C., 236; Grantham v. Kennedy, 91 N. C., 148; Hare v. Hollomon, 94 N. C., 14; Sumner v. Sessoms, Ibid, 371; Burgess v. Kirby, Ibid., 575; Ward v. Lowndes, 96 N. C., 367; and numerous cases cited in these, all going, with one accord, to show that where there is jurisdiction in> the Court, its action cannot be attacked except by direct proceedings, and that infancy, lunacy, &c., constitute no exception. The 9th exception cannot be sustained. The amendment was a matter of discretion in the Court below, and it was the judge as to whether the amendment or the supplied .answers for those that were lost, were such as were authorized. No error.