This is an appeal by the plaintiff from an order of Adams, J., dissolving an injuction and dismissing the action. *Page 393 On 25 February, 1911, at the instance of S. Lowman Co., J.H. Benton, a justice of the peace for Anson County, issued a summons against T. J. Ballard, returnable 1 March, 1911.
On 27 February, 1911, the said summons was returned to said justice's court with the following indorsement: "Served 27 February, 1911, by reading within summons to T. J. Ballard, defendant. R. J. Lowry, Sheriff; J. T. Short, Deputy Sheriff." On 16 March, 1911, said justice of the peace rendered judgment in favor of S. Lowman Co. against T. J. Ballard in the sum of $173.75, with interest and costs, and said judgment was docketed in the office of the clerk of the Superior Court of Anson County, and upon which S. Lowman Co. caused execution to be issued.
Injuction was issued by Bragaw, J., at the instance of T. J. Ballard to prevent the service of said execution, claiming that (489) no summons had ever been served on him in the original case of S. Lowman Co., against T. J. Ballard before the said J.H. Benton, justice of the peace.
Upon the return day of the restraining order before Adams, J., the latter dissolved the injuction and dismissed the action.
We are of opinion that the proper procedure for the plaintiff to pursue is to move before the justice of the peace to set aside the judgment. It is then the justice's duty to find the facts. Notice of such motion may be given by publication or by service upon the attorney of record.
It appears upon the face of the record that the service of the justice's summons was valid. Therefore, it cannot be impeached except by motion in that cause to set it aside. McKee v. Angel, 90 N.C. 62; Whitehurst v.Trans. Co., 109 N.C. 344.
It is said in Thompson v. Notion Co., 160 N.C. 525: "If the judgment is rendered in the absence of the defendant, and the process is defective, or there is the appearance of service when in fact none, the defendant may move before the justice to set the judgment aside."
When such motion is lodged, the defendant may apply to the clerk, and, upon giving the required bond, have the execution recalled until the motion is finally disposed of.
We cannot treat this civil action originating in the Superior Court, even by consent, as a motion in the cause in a justice's court.
Affirmed.
Cited: S. c., 168 N.C. 17; Estes v. Rask, 170 N.C. 342. *Page 394