Supreme Court of North Carolina, 1956

Shaver v. Shaver

Shaver v. Shaver
Supreme Court of North Carolina · Decided June 26, 1956 · Per Curiam
93 S.E.2d 614; 244 N.C. 309; 1956 N.C. LEXIS 417 (South Eastern Reporter, Second Series)

Shaver v. Shaver

Opinion

Per Curiam.

The movant, Carpenter, is a stranger to this cause. He is neither party nor privy.

The general rule is that a stranger to the record, who is neither a party nor a privy to the action, unless authorized by statute, ordinarily has no standing to vacate a judgment by a motion in the cause. Smith v. New Bern, 73 N.C. 303; Edwards v. Phillips, 91 N.C. 355; Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; In re Bank, 208 N.C. 509, 181 S.E. 621; 49 C.J.S., Judgments, p. 540; 31 Am. Jur., Judgments sec. 722; Annotations: 99 A.L.R., p. 1310; 12 A.L.R. 2d, p. 727.

*311 This fatal defect appears on the face of the record. This being so, it is immaterial whether notice of hearing on Carpenter’s motion was properly served on plaintiff and defendant. This Court takes notice ex mero motu that Carpenter cannot proceed with his motion and will order it dismissed. Cf. Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; Watson v. Lee County, 224 N.C. 508, 31 S.E. 2d 535; Aiken v. Sanderford, 236 N.C. 760, 73 S.E. 2d 911.

In accordance with this opinion, the lower court will enter an order dismissing Carpenter’s said motion.

Docketed as #674, Fall Term, 1955, this appeal was carried over and docketed as #666, Spring Term, 1956. This appeal, and the appeal in Carpenter v. Carpenter, ante, 286, this day decided, were argued together at Fall Term, 1955. As will be observed, in Carpenter v. Carpenter, an independent action for annulment, Carpenter (the movant herein) undertakes to attack collaterally the same divorce decree.

Reversed.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.