Martin v. Deep River Copper Mining Co. ( 1870 )

Eemde, J.

Tbe plaintiff sued out an attachment, and ■obtained judgment, in Eowan Superior Court, against tbe defendant, by tbe name of tbe Deep Eiver Copper Mining Company; and, under tbe provisions of tbe Code, bad tbe judgment transferred from Eowan to Guilford County, and docketed there, and sued out a ft. fa. and levied it on tbe lands of tbe u Deep Eiver Copper Company of tbe City of Baltimore f who, upon motion and affidavit in Guilford Superior Court, obtained an order to vacate the judgment docketed in Guilford, and to enjoin proceedings under the fi. fa.

Admitting for the sake of the argument, that the Deep River Copper Company of the City of Baltimore, could be heard at all in a suit to which they were no party, we are of the opinion that the motion to -vacate ought to have been made in Rowan Superior Court, where the judgment was rendered, and not in Guilford, to which it had been transferred. If the Deep River Copper Company of the City c>f Baltimore, who made the motion in this cause, had no opportunity to defend the suit, and really desired to do so, the judgment in Rowan could be vacated, and they could be allowed to defend by setting up the misnomer. And on the other hand, if there is any irregularity in the proceedings affecting the plaintiff, he could there move for leave to-amend; as, for instance, to aver that the defendants were known as well by one name as the other.

There was error in vacating the judgment docketed in Guilford, and in the perpetual injunction: Williams v. Rockwell, ante 325. Let this be certified, &c.

There will be judgment here against the Deep River Copper Company of the city of Baltimore, for the costs of the appeal.

Per Curiam. Reversed.