#### BENJAMIN F. KEATON vs. WILLIAM F. BANKS & AL.

A judgment may be vacated at any time, on motion in tlie same Court, in which it was rendered, upon parol proof that it was entered irregularly and not according to the course of the Court; as, for instance, where the defendant in the cause was an infant, and no guardian hadbeen appointed to represent his interest.

The cases of White v. Albertson, 3 Dev. 242, Bender v. Askew, 3 Dev. 152, Pearson v. Nesbitt, 1 Dev- 315, and Grumpier v. Conner, 1 Dev. 53, cited and approved.

Appeal from the Superior Court of Law of Pasquotank County, at the Fall Term 1849, his Honor Judge Bailey presiding.

This is a motion to vacate a judgment. , The case is as follows: A writ was issued on the 2nd day of March *3821841, at the instance of Banks against Benjamin F. Keaton, who was an infant, returnable to the March Term 1541, of the County Court of Pasquotank. This writ was filed, endorsed, “service accepted William F. Keaton.” At the same term the cause was referred to the Clerk, who at September term 1841, made a report, after which, upon the record was found the following entry: “Jury impannelled and find that the defendant did assume,” &c. Judgment was rendered, and on an execution issued thereon negroes belonging to the plaintiff were sold. The sale took place in the Spring of 1S43. In August 1849, a notice was issued to the defendant by the plaintiff, that, at the ensuing term of the County Court of Pasquotank, a motion would be made to vacate the judgment so obtained, and at the succeeding Term in September, all parties being in Court, “it was adjudged by tbe Court, that the said judgment be set aside and declared void.” From this judgment, Banks appealed to the Superior Court. In the Superior Court, the plaintiff offered evidence to show, that, by the judgment originally given against him in the County Court, while he was an infant, he was greatly injured, by reason of the want of a proper defence to the action. Ho further offered to show by William F. Keaton, that he never was appointed guardian ad litem to Benjamin F. Keaton to bis knowledge, nor everconsented to be appointed, and that he did not defend the said action. This parol evidence the Court refused to hear and reversed the order of the County Court.

From this judgment the plaintiff appealed.

Meath, for the plaintiff.

Ehringhaus, for the defendants.

Nash, J.

We do not concur in the opinion of the Court below. The error seems to hare originated in not ad*383verting to the difference between receiving parol testimony to impeach a judgment collaterally, and to receiving it on a motion to vacate it, made in the Court where the judgment is. In the former case it is certainly incompetent, in the latter it is competent. Upon the appeal from the judgment of the County to the Superior Court, the trial was to be had in the latter, as it was had in the former. And. if the evidence offered to his Honor was such, as would have been proper in the County Court, it ought to have been admitted by him. In the writ William F. Keaton is called the guardian ad litem of Benjamin, and the record is upon its face regular according to the course of the Court. The service of the writ appeared to have been admitted by William F. Keaton ; the Court must have then considered the infant Benjamin in Court. The fact was otherwise. According to the evidence offered, William F. Keaton never was appointed the guardian of the infant, and never consented to be so, and did not defend the action. If this was so, the judgment was in reality irregular, and contrary to the course Gf the Court. If an action had been brought to recover the property sold under it, however, evidence could not have been received to impeach it. It was the judgment of a Court having jurisdiction of the matter But, according to the fact, Benjamin F. Keaton was no party to the proceedings either by himself'or his guardian. And the judgment is void, for there can be no judgment against a person not in Court. White v. Albertson, 2 Dev. 242. The question then presents itself, could the County Court set. aside this judgment at a term subsequent to that at which it was rendered, by petition or motion, and receive parol evidence to show the truth of the transaction. It appertains to every Court, as a necessary part of its functions, to set aside an irregular judgment. The ends of justice often require it. Bender v. Askew, 3 Dev. 152. In that case it is stated by the Court, that the power so *384to do is not confined to the term, in which the judgment is rendered. The judgment against Bender was rendered at Jaunary term 1838, and set aside at August term 1S39. The first case presenting the question is that of Pearson v. Nesbit, 1st Dev. 135. There the judgment was obtained at Fall term 1820 and the motion, on affidavit, not filed until Fall term 1827, when the judgment was vacated, because Jesse A Pearson was both plaintiff' and defendant. In Crumpler v. Governor. 1st Dev. 52, a final judgment obtained at one term of the Court, was at a subsequent one, on motion founded on affidavit, set aside for irregularity. In all these cases the motion was made in the Court, where the judgment was, and directly upon it. Tidds.Prac.61t. Bing, on Judgments 21-22. It has been insisted, however, that the original case continued in Court two terms, before the judgment was entered against Benjamin Keaton, and the Court thereby recog» nised William F. Keaton as his guardian, and Benjamin was in Court. For this position the case of White v. Albertson, 3 Dev. 242, was cited. The attempt there was to impeach the judgment collaterally. Judge PIenderson put it upon that ground, exclusively. It is true that the case'was in Court the time specified, and the record does speak of William F. Keaton as the guardian of Benjamin. But on motion to vacate the judgment, as irregular, the Courtis not precluded from enquiring into the truth, whether William F. Keaton was the guardian of Benjamin, and whether the latter did appear or not. Bender v. Askew, 3 Dev. 152. The vacating such judgments proceeds upon the grounds, “that a judgment has been signed upon the record, which was not in fact the judgment of the Court, which the Court ought not to have given, and which the plaintiff or his attorneyknew the Court would not give or allow.” .

The judgment of the Superior Court is reversed and the case remanded.

Per Curiam.

Ordered accordingly.