{
  "id": 11272198,
  "name": "T. J. BALLARD v. R. J. LOWRY, Sheriff, and S. LOWMAN & CO.",
  "name_abbreviation": "Ballard v. Lowry",
  "decision_date": "1913-11-12",
  "docket_number": "",
  "first_page": "487",
  "last_page": "489",
  "citations": [
    {
      "type": "official",
      "cite": "163 N.C. 487"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "160 N. C., 525",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "109 N. C., 344",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    },
    {
      "cite": "90 N. C., 62",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
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  "last_updated": "2023-07-14T20:17:53.185686+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "T. J. BALLARD v. R. J. LOWRY, Sheriff, and S. LOWMAN & CO."
    ],
    "opinions": [
      {
        "text": "Brown, J.\nOn 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.\nOn 27 February, 1911, the said summons was returned to said justice\u2019s court with the following indorsement: \u201cServed 27 February, 1911, by reading within summons to T. J. Ballard, defendant. E. J. Lowry, Sheriff; J. T. Short, Deputy Sheriff.\u201d 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.\nInjunction 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.\nUpon tbe return day of tbe restraining order before Adams, J., tbe latter dissolved tbe injunction and dismissed tbe action.\nWe 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\u2019s duty to find tbe facts. Notice of such motion may be given by publication or by service upon tbe attorney of record.\nIt appears upon tbe face of tbe record tbat tbe service of tbe justice\u2019s 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.\nIt is said in Thompson v. Notion Co., 160 N. C., 525: \u201cIf 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.\u201d\nWhen 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.\nWe cannot treat this civil action originating in tbe Superior Court, even by consent, as a motion in tbe cause in a justice\u2019s court.\nAffirmed.",
        "type": "majority",
        "author": "Brown, J."
      }
    ],
    "attorneys": [
      "Lockhart .& Dunlap for plaintiff.",
      "Gulledge & Boggan for defendant."
    ],
    "corrections": "",
    "head_matter": "T. J. BALLARD v. R. J. LOWRY, Sheriff, and S. LOWMAN & CO.\n(Filed 12 November, 1913.)\n1. Justices\u2019 Courts \u2014 Judgment Docketed in Superior Court \u2014 Service of Process \u2014 Execution Recalled \u2014 Procedure.\nWhere 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\u2019s court to set aside the judgment there rendered, 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.\n2. Same \u2014 Findings\u2014Undertakings.\nUpon 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.\n3. Justices\u2019 Courts \u2014 Service of Process \u2014 Judgment Set Aside \u2014 Mo- \u2022 tion in the Cause \u2014 Jurisdiction\u2014Consent of Parties.\nWhere 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\u2018from a justice\u2019s 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.\nAppeal by plaintiff from order vacating an attachment, from ANSON.\nThis is an appeal by the plaintiff from an order of Adams, J., dissolving an injunction and dismissing the action.\nLockhart .& Dunlap for plaintiff.\nGulledge & Boggan for defendant."
  },
  "file_name": "0487-01",
  "first_page_order": 533,
  "last_page_order": 535
}