Owens v. . Alexander , 78 N.C. 1 ( 1878 )

The defendant Johnston was originally one of the plaintiffs in the cause, but at an early stage of it he was permitted to retreat. Subsequently a decree was made that upon his paying so much money a title to the land should be made to him, of which land he is in possession. And now a notice is served on him to show cause why he should not perform the decree, and why in the meantime a receiver should not be appointed to take possession of the land and the mines thereon. To this the defendant answers that he was not a party in the cause at the time the decree was made, and that therefore the same is a nullity as to him.

Unquestionably this is a complete defense. A record imports absolute verity as to parties and privies, but third persons are not bound thereby. It was indeed insisted at the bar that it appears that it was a consent decree. Admit it; but that means the consent of those who were parties, and not of those who were not parties. It was further said that it was drawn by Johnston's counsel. That does not appear; on the contrary, the record, by which we are bound, shows that Johnston was not a party, and had no counsel. It may be that the plaintiffs may suffer by the carelessness of the record, but while it may be regretted, we cannot control it. The record controls us.

PER CURIAM. Reversed.

Cited: Dickens v. Long, 109 N.C. 172; Leroy v. Steamboat Co.,165 N.C. 114.

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