#### T. J. BALLARD v. R. J. LOWRY, Sheriff, and S. LOWMAN & CO.

(Filed 12 November, 1913.)

1. Justices’ Courts — Judgment Docketed in Superior Court — Service of Process — Execution Recalled — Procedure.

Where a-judgment of a justice of tbe peace bas been docketed in tbe Superior Court and execution issued therefrom, which is sought to be recalled upon the ground that the judgment had been obtained by default and the summons had not been served, though upon its face it so appeared to have been, the remedy is by motion in the justice’s court to set aside the judgment there *488rendered, made upon notice to the plaintiff, his attorney of record; or by publication; and an injunction may not issue in the Superior Court to stay the execution.

2. Same — Findings—Undertakings.

Upon motion duly made before a justice of the peace to set aside his judgment for lack of proper service, which has been docketed in the Superior Court, from whence execution has issued, it is the duty of the justice to find the facts; and when such motion is lodged the defendant may apply to the clerk and have the execution recalled until the motion is finally disposed of, upon giving the required bond.

3. Justices’ Courts — Service of Process — Judgment Set Aside — Mo- • tion in the Cause — Jurisdiction—Consent of Parties.

Where upon the face of a summons it appears to have been properly served, the service thereof may not be impeached except by motion in the cause to set it aside; and where the summons issued‘from a justice’s court, the Supreme Court will not treat the motion as properly lodged, even by consent of the parties, when it does not so appear to have been done.

Appeal by plaintiff from order vacating an attachment, from ANSON.

This is an appeal by the plaintiff from an order of Adams, J., dissolving an injunction and dismissing the action.

Lockhart .& Dunlap for plaintiff.

Gulledge & Boggan for defendant.

Brown, J.

On 25 February, 1911, at the instance of S. Low-man & Go., J. H. Benton, a justice of the peace for Anson Oounty, issued a summons against T. J. Ballard, returnable 1 March, 1.911.

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. E. 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.

*489Injunction was issued by Bragaw, J., at tbe instance of T. J. Ballard to prevent tbe service of said execution, claiming tbat no summons bad ever been served on bim in tbe original case of S. Lowman & Co. against T. J. Ballard before tbe said J. II. Benton, justice of tbe peace.

Upon tbe return day of tbe restraining order before Adams, J., tbe latter dissolved tbe injunction and dismissed tbe action.

We are of opinion tbat tbe proper procedure for tbe plaintiff to pursue is to move before tbe justice of tbe peace to set aside tbe judgment. It is tben tbe justice’s duty to find tbe facts. Notice of such motion may be given by publication or by service upon tbe attorney of record.

It appears upon tbe face of tbe record tbat tbe service of tbe justice’s summons was valid. Therefore, it cannot be impeached except by motion in tbat 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 tbe judgment is rendered in tbe absence of tbe defendant, and the process is defective, or there is the appearance of service when in fact none, tbe defendant may-move before tbe justice to set tbe judgment aside.”

When such motion is lodged, tbe defendant may apply to tbe clerk, and, upon giving tbe required bond, have tbe execution recalled until tbe motion is finally .disposed of.

We cannot treat this civil action originating in tbe Superior Court, even by consent, as a motion in tbe cause in a justice’s court.

Affirmed.