Jordan v. McKenzie

Full title: J. S. JORDAN v. MRS. LYDIA McKENZIE

Court: Supreme Court of North Carolina

Date published: Dec 1, 1931

162 S.E. 65 (N.C. 1931)

162 S.E. 65

Opinion

(Filed 23 December, 1931.)

Appeal and Error A f — Appeal by administrator upon whom summons has not been served will be dismissed, the administrator not being a party.

Where judgment by default for want of an answer has been rendered against a defendant, who has later died and her administrator appointed and ordered to be made a party, the administrator does not become a party until service of summons on him, and has no standing in court, but after service of summons he may appear and challenge the validity of the proceedings.

APPEAL by D. A. McKenzie, administrator of Mrs. Lydia McKenzie, from Schenck, J., at May Term, 1931, of MOORE. Appeal dismissed.

L. B. Clegg for plaintiff.

H. F. Seawell, Jr., for defendant.

This action was begun on 22 March, 1928. On Monday, 30 April, 1928, judgment by default for want of an answer was rendered in favor of the plaintiff and against the defendant. Since the rendition of the judgment, the defendant, Mrs. Lydia McKenzie, has died.

On 22 March, 1930, D. A. McKenzie, administrator of Mrs. Lydia McKenzie, after notice to plaintiff, moved in the action that the judgment be set aside and vacated, on the ground that the summons was not served on the defendant, notwithstanding the return endorsed thereon by the sheriff to the contrary. This motion was heard by Judge Cowper at March Term, 1931 (see Jordan v. McKenzie, 199 N.C. 750, 155 S.E. 868). At the hearing Judge Cowper found as a fact that the summons was not served on the defendant, Mrs. Lydia McKenzie, and on this finding ordered that the judgment be set aside and vacated. It was ordered that the action be continued.

At May Term, 1931, on motion of the plaintiff, it was ordered that summons be issued in the action for D. A. McKenzie, administrator of Mrs. Lydia McKenzie, and that the complaint heretofore filed be adopted as the complaint against the said D. A. McKenzie, administrator. From this order, D. A. McKenzie, administrator, appealed to the Supreme Court.

PER CURIAM.

It does not appear in the record that summons has been issued for D. A. McKenzie, administrator. He cannot challenge the validity of the order made by Judge Schenck, until the summons has been issued and served on him. He will then be a party to the action, and may present for decision the questions of law discussed in the brief filed in his behalf in this Court. This appeal must be and is

Dismissed.