McDonald v. . McBryde , 117 N.C. 125 ( 1895 )

The defendants, Pope and Hodges, moved to set aside and vacate said judgment:

1. On the ground that the judgment, was irregular and void.

2. For excusable neglect on the part of defendants' attorney.

3. For fraud.

The plaintiff resisted the motion, and moved to vacate the restraining order granted by Robinson, J., on the following grounds:

1. That the judgment was a regular consent judgment, and was (127) not void or voidable, and that, if it were irregular, only the defendant, McBryde, could attack it.

2. That the defendants, Pope and Hodges, not having filed an application to interplead before judgment, could not be allowed to do so after judgment, and that by becoming sureties on defendant's bond they acknowledged his title and were estopped from asserting the contrary afterwards.

3. That a judgment could not be attacked for fraud by a motion in the cause, but that it must be done in an action instituted for that purpose.

It further appeared to the court that defendants had issued a summons in a new action, returnable to February Term, 1895, of Harnett County Superior Court, in which they were plaintiffs and plaintiff herein was defendant. After hearing affidavits and arguments, his Honor held that the judgment was regular in form, and the process upon which it was obtained valid, and that there was no reason why the judgment should be disturbed, unless it were fraudulent; and that if it were fraudulent, it must be attacked by an action brought for that purpose; and he suggested that defendants might file their complaint in the action then commenced and obtain a restraining order.

The motions made by defendants were refused, and the restraining order dissolved, and judgment rendered in favor of plaintiff and against defendants and their bond for costs.

From the refusal of the court to vacate said judgment and to grant an injunction defendants Pope and Hodges appealed. We concur with the Judge below in the opinion (128) that the bondsmen of the defendant who has consented to a judgment against himself and them, in claim and delivery, for the recovery of certain property, and if recovery thereof could not be had, then for its value, are not entitled to come before the Clerk after judgment and procure an order making them parties defendant, and ask to have the judgment vacated and for an injunction. The bondsmen did not offer to interplead and claim the property in the manner prescribed by law (The Code, sec. 331) and the judgment is none the less conclusive upon the sureties because taken by consent. Council v. Averett, 90 N.C. 168. It can now be set aside only by civil action, and not by a motion in the cause. Stump v. Long, 84 N.C. 616. It is no ground of complaint on the part of the sureties that the defendant consented to judgment, if such was the fact, before the maturity of the debt, such an agreement not being necessarily fraudulent. Were it admitted that there was collusion or fraud affecting the rights of the sureties, such as would afford proper ground for impeaching the judgment (which we are not to be understood as conceding), their remedy would be by a new action and not by motion in the cause. Smith v. Fort, 105 N.C. 446. No error and the judgment is

Affirmed.

Cited: Nimocks v. Pope, post, 319; Smith v. Whitaker, post, 392.

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