Ballard v. . Lowry

Brown, J. On 25 February, 1911, at the instance of S. Low-man & Go., J. H. Benton, a justice of the peace for Anson Oounty, issued a summons against T. J. Ballard, returnable 1 March, 1.911. On 27 February, 1911, the said summons was returned to said justice’s court with the following indorsement: “Served 27 February, 1911, by reading within summons to T. J. Ballard, defendant. E. J. Lowry, Sheriff; J. T. Short, Deputy Sheriff.” On 16 March, 1911, said justice of the peace rendered judgment in favor of S. Lowman & Co. against T. J. Ballard in the sum of $173.75, with interest and costs, and said judgment was docketed in the office of the clerk of the Superior Court of Anson County, and upon which S. Lowman & Co. caused execution to be issued. *489 Injunction was issued by Bragaw, J., at tbe instance of T. J. Ballard to prevent tbe service of said execution, claiming tbat no summons bad ever been served on bim in tbe original case of S. Lowman & Co. against T. J. Ballard before tbe said J. II. Benton, justice of tbe peace. Upon tbe return day of tbe restraining order before Adams, J., tbe latter dissolved tbe injunction and dismissed tbe action. We are of opinion tbat tbe proper procedure for tbe plaintiff to pursue is to move before tbe justice of tbe peace to set aside tbe judgment. It is tben tbe justice’s duty to find tbe facts. Notice of such motion may be given by publication or by service upon tbe attorney of record. It appears upon tbe face of tbe record tbat tbe service of tbe justice’s summons was valid. Therefore, it cannot be impeached except by motion in tbat cause to set it aside. McKee v. Angel, 90 N. C., 62; Whitehurst v. Trans. Co., 109 N. C., 344. It is said in Thompson v. Notion Co., 160 N. C., 525: “If tbe judgment is rendered in tbe absence of tbe defendant, and the process is defective, or there is the appearance of service when in fact none, tbe defendant may-move before tbe justice to set tbe judgment aside.” When such motion is lodged, tbe defendant may apply to tbe clerk, and, upon giving tbe required bond, have tbe execution recalled until tbe motion is finally .disposed of. We cannot treat this civil action originating in tbe Superior Court, even by consent, as a motion in tbe cause in a justice’s court. Affirmed.