Opinion
Filed 21 September, 1949.
DEFENDANT'S appeal from Burgwyn, Special Judge, May Term, 1949, PASQUOTANK Superior Court.
John H. Hall and McMullan Aydlett for plaintiff, appellee.
Harry B. Brown for defendant, appellant.
The plaintiff obtained a judgment by default final against the defendant Jones for goods sold and delivered to him. The defendant moves to set aside the judgment as irregular and voidable because rendered on open account without allegation of express contract.
The judgment was rendered May 10, 1948. The motion to set aside was not made until March 18, 1949.
Meantime, in a partition proceeding entitled Mildred Hooker v. J. H. Jones, $998.50 had been paid into court as Jones' part of the proceeds of the sale of lands. The fund was attached for enforcement of a judgment obtained in a case entitled H. D. Scott Co. v. Jones. Lindsey-Robinson Co., Inc., intervened, claiming priority of lien under their judgment. In the ensuing litigation the defendant was an active party. The controversy reached the Supreme Court on appeals; and the case is reported ante, 74, q. v. H. D. Scott Co. failed for want of service of summons to support the judgment and attachment levied thereunder, and the Lindsey-Robinson Co. lien was sustained. Mr. Justice Devin, writing the opinion of the Court, said re this judgment:
"While the judgment of the Lindsey-Robinson Co. seems to have been rendered by default final upon a complaint for goods sold and delivered (G.S. 1-211, G.S. 1-212), the judgment was not void, and there was no effort at the time of the hearing to attack it as irregular. Hence, the ruling of the judge below must be upheld. Supply Co. v. Plumbing Co., 195 N.C. 629, 143 S.E. 248; Jeffries v. Aaron, 120 N.C. 167, 26 S.E. 696."
Judge Burgwyn heard the matter May 9, 1949, and, reviewing the records and pertinent facts, denied the motion, and movant appealed.
We find in the record nothing to justify interference with the result.
The judgment is
Affirmed.