Jordan v. . McKenzie , 201 N.C. 821 ( 1931 )

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. 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.