The present defendant brought its action in the court of a justice of the peace, against the present plaintiffs, to recover the sum of $75, and obtained judgment on 13 November, 1886, and afterwards filed and docketed a transcript of its judgment in the office of the Superior Court clerk of the county where the judgment was rendered, as allowed by the statute (Code, section 839). The present plaintiffs allege that the summons in the action just mentioned was served on J. B. Whitehurst, one of the defendants therein named (who is one of the present plaintiffs), that it was never served on S. Whitehurst or C. W. (343) Whitehurst therein named, who are two of the present plaintiffs; that, nevertheless, the said summons purports to have been served upon all the persons named as defendants therein.
This action is brought by the plaintiffs for the purpose of having the judgment above mentioned set aside and declared to be void, and to obtain relief by injunction, etc., upon the ground that no summons was ever served upon them.
Counsel for the defendant moved that the action be dismissed, "because a motion in the original cause was the proper remedy," etc.
The court gave judgment dismissing the action, and the plaintiffs appealed. A judgment against a party who has not submitted himself to the jurisdiction of the court granting it for that purpose, and who has not, in fact, been served with original leading process, though the same purports to have been served, is irregular and may be avoided, the remedy being a motion in the cause to set the judgment aside for irregularity. Such judgment is not void — it is only voidable, because it appears by the record (return) that the original summons was served upon the party against whom it is entered. It, however, so appears in *Page 250 such case by inadvertence, mistake or false return of the summons by the sheriff.
The court is careful to see that it has jurisdiction, and that its course of action in the progress of the action is orderly and duly observed. When there is irregularity in any material respect appearing upon the face of the record to the prejudice of a party, it will, ex mero motu, correct the same, or, within a reasonable period, on motion of the (344) party prejudiced, it will correct, set aside, or modify, if need be, the order, judgment or other matter or thing complained of. And as to the jurisdiction of the party, and perhaps in some other possible cases, it will, there being no laches, no motion in the cause, supported by affidavits, inquire whether it has such jurisdiction, although upon the face of the record it appears to have the same. Thus, if the original summons in the action be returned by the sheriff "served" upon the defendant therein named, it will so inquire whether, in fact, such service was made, or whether the return is made untruly by inadvertence, mistake, or falsely on purpose. This is important and necessary, because the service of the summons is essential to the jurisdiction, unless the party submits himself to the court, and, besides, to give the party his day in court, as the law contemplates he shall have the same, Keaton v.Banks, 32 N.C. 381; Mason v. Miles, 63 N.C. 564; Cowles v. Hayes,69 N.C. 406; Doyle v. Brown,72 N.C. 393; Koonce v. Butler,84 N.C. 221; Brickhouse, v. Sutton, 99 N.C. 103, and there are numerous other cases.
Although the court of a justice of the peace is not a court of record, its proceedings are authoritative and judicial in their nature, and its judgments are conclusive and binding until they shall, in an orderly way, be set aside, reversed or modified. Such judgments cannot be attacked, when it appears from the proceedings that the court had jurisdiction, for irregularity or other cause. The remedy for irregularity is by a motion in the action before the justice of the peace who granted the judgment, or before his successor in office. The office of justice of the peace is continuous in its nature, and filled by the incumbent, and to be filled after him by his successors. He is required to keep dockets, enter minutes of proceedings before him, keep and preserve his official papers and transfer the same to his successors. (Code, secs. 828, 831). So that it is orderly, convenient, necessary and appropriate to make pertinent motions of all kinds in an action in (345) such court just as like motions may be made in actions in the Superior Court. If a motion should be made to set aside a judgment in the court of a justice of the peace, and it should be allowed or denied improperly, the complaining party might appeal to the *Page 251 Superior Court. Hooks v. Moses, 30 N.C. 88; McKee v. Angel, 90 N.C. 60;Moore v. Edwards, 92 N.C. 43.
That a judgment of a justice of the peace has been docketed in the office of the Superior Court clerk, as allowed by the Statute (Code, sec. 839), does not give the Superior Court jurisdiction of the action in which such judgment was rendered. The docketing makes the judgment that of the Superior Court in all respects only for the purpose of creating a lien upon the real estate of the judgment debtor, and enforcing the same by execution and otherwise. Hence, the latter court has no authority to set the judgment aside for irregularity, or upon the ground that the summons in the action in which it was rendered had not, in fact, been served upon the defendant therein named, while the return of the same showed that it had been.Ledbetter v. Osborne, 66 N.C. 379; Birdsey v. Harris, 68 N.C. 92; Mortonv. Rippy, 84 N.C. 611.
If a judgment of a justice of the peace shall have been docketed and afterwards set aside in the way above indicated, the defendant in the action should apply by motion to the Superior Court to set the judgment there aside, and the court should grant the motion, basing its action upon that of the court of the justice of the peace. Thus complete and effectual relief would be granted.
So that the plaintiffs in the present action should have sought the relief they demanded by a motion in the action mentioned in the court of the justice of the peace. This action was improvidently brought, and the court properly dismissed it.
Affirmed.
Cited: King v. R. R., 112 N.C. 319; Gallop v. Allen, 113 N.C. 26;Patterson v. Walton, 119 N.C. 501; Dunham v. Anders, 128 N.C. 212;Bullard v. Edwards, 140 N.C. 648; Rutherford v. Ray, 147 N.C. 258, 262;Thompson v. Notion Co., 160 N.C. 525; Ballard v. Lowry, 163 N.C. 489;Lowman v. Ballard, 168 N.C. 18; Stocks v. Stocks, 179 N.C. 288;Caviness v. Hunt, 180 N.C. 385.
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