Peoples v. . Norwood

Merrimon, J. (after stating the case). The judgment in question was irregular, but not void. The appellants and appel- *172 lee were before the Court, iu the attitude of adversary parties litigant, for several years, and respectively all the time represented by counsel, cognizant of all that was done in the matter, and especially at the term of the Court at which the judgment was granted and entered, the appellee’s counsel was present and had knowledge of it. Although the matter that went up from the Court of Probate to the Superior Court, was not such as in the ordinary course of procedure could entitle the appellants to a judgment for money, and regularly the judgment of the latter Court ought to have been confined to the exceptions to the account as audited by the Judge of Probate, nevertheless, the Court, in the exercise of its general jurisdictional powers, could, by consent and agreement of the parties, take jurisdiction of them, and grant a judgment by agreement or confession, and such judgment would be valid, notwithstanding there was neither summons nor pleadings. The purpose of the summons is to bring the parties into, and give the Court jurisdiction of them, and of the pleadings, to give jurisdiction of the subject matter of litigation and the parties in that connection, and this is orderly and generally necessary; but when the parties are voluntarily before the Court, and by agreement, consent or confession, which in substance are the same thing, a judgment is entered in favor of one party and against another, such judgment is valid, although not granted according to the orderly course of procedure. Farley v. Lea, 4 Dev. & Bat., 170; State v. Love, 1 Ired, 264; Stancill v. Gay, 92 N. C., 455. The appellee knew that he had a matter pending before the Superior Court, and that he was represented by counsel. At his instance, his counsel in the Probate Court, took steps to take the matter of which he complained into the Superior Court, and it is obvious that he intended the counsel to represent him in the latter Court, as he did do. The record is very meagre and unsatisfactory. It was not, as we have said, in the regular course of the matter before the Court, to grant such a judgment, and what considerations led to it do not appear. It does not appear *173 from anything in the record, or in the recitals of the judgment, that the appellee or his counsel assented affirmatively to it. There only arises the legal presumption, not irrebuttable, that it was properly entered. It appears that the appellee made affidavit in support of his motion to set the judgment aside, to the effect that he did not confess the same, nor agree, nor assent thereto, nor authorize his counsel to do so, and that in fact, he had paid two of the appellants the money due them, and for which they so obtained judgment, before it was granted, and that he paid to the third appellant the sum due him after it was granted. Although the Court did not formally find the facts to be so, it must be. taken that it was satisfied that there was reasonable ground to so believe, as it set the judgment aside. The Court had jurisdiction to grant, and apparently hp.d just ground for granting the judgment, but although the Judge signed it, it seems that the Court was not fully and accurately in possession of the facts, and advised as to the considerations that led to it. It was competent and proper for the Court in passing upon the motion, to make inquiry in respect thereto. Koonee v. Butler, 84 N. C., 221; Weaver v. Jones, 82 N. C., 440. But the Court ought not to set the judgment aside as of course, because of irregularity that does not render it void. To warrant setting the judgment aside, the irregularity should be in respect to some matter of substance, that might prejudice the complaining party to it, and the motion to set it asideshould be made within a reasonable time. Williamson v. Hartman, 92 N. C., 236; Stancill v. Gay, supra. The appellee delayed making his motion to set the judgment aside for more than two years, and in the meantime, several executions had been issued upon it, of which he had notice, and he had paid the costs of the Court. But it seems that the acquiescence was not complete, and the Court below was satisfied that the judgment was not properly granted, that there was reasonable ground to believe that the appellee had paid two of the ap *174 pellants the money due them from him before it was granted, and to the third one the money due to him afterwards. We are therefore of opinion that the motion to set the judgment aside was properly granted as to the two appellants who, it is alleged, received the money due them before the judgment was granted. But as to the third one, who it is alleged received the money due him after the judgment, the motion'ought not to have been sustained, because it is not suggested that as to him, the appellee was prejudiced by the judgment. The latter alleges, that he paid the former the money due him since it was granted; if this be so, he can have prompt and adequate relief by a motion in the cause to have satisfaction of the judgment entered. Foreman v. Bibb, 65 N. C., 128. It is important that judgments should not be disturbed unnecessarily nor for light cause. The order appealed from must be modified, as indicated in this opinion, and to that end, let it be certified to the Superior Court. It is so ordered. Modified.