Tyson v. . Belcher

MerrimoN, J. (after stating the facts). From an examination of the transcript of the record of the ex-parte special proceeding, objected to as evidence, it appears that the Court could properly have, and did take, in an orderly way, jurisdiction of the parties to and the subject-matter of, the proceeding. The petitioners were represented by counsel and the petition was filed as allowed by the statute (The Code, § 286). If there were irregularities at all in the course of the proceeding they certainly were not such as rendered it, or the orders and judgment therein entered, absolutely void; at most they were only voidable, and could not, therefore, be attacked collaterally. In such case the remedy would be by a proper motion in the proceeding itself. If it were affected by fraud, then, as it is ended the remedy would be by an independent action, for the purpose of having the judgment, or the whole proceeding, accordingly as the case might be, adjudged void for fraud. Nor has the second ground of exception any force. By the will mentioned, the land in question was devised to the present plaintiffs, who were parties to the special proceeding referred to; it belonged to them and they had the right to petition the Court to sell the same as they did Those of them who were of age could sell and dispose of their interest in and title to the same, and bind themselves effectively in a judicial proceeding. As to the infants, they could sue by their next friend, as they did, and the Court had jurisdiction of them and as well of their lands embraced by the proceeding. The Court had jurisdiction of them and their land, and in contemplation of law it was careful to see that they suffered no prejudice. These authorities fully sustain what we have thus said : Williams v. Harrington, 11 Ired., *115 616; Sutton v. Schonwald, 86 N. C., 198; Fowler v. Poor, 93 N. C., 466; Tate v. Mott, 96 N. C., 19; Ward v. Lowndes, ibid., 367; Edwards v. Moore, 99 N. C., 1; Brickhouse v. Sutton, ibid., 103. No error. Affirmed.