Shaver v. Shaver , 244 N.C. 309 ( 1956 )

93 S.E.2d 614 (1956) 244 N.C. 309

Mary K. SHAVER
v.
Floyd N. SHAVER.

No. 666.

Supreme Court of North Carolina.

June 26, 1956.

Haywood & Denny, Durham, for plaintiff Mary Shaver Carpenter, appellant.

Oscar G. Barker and Reade, Fuller, Newsom & Graham, Durham, for Stanley M. Carpenter, movant.

Ludlow T. Rogers, Durham, for defendant Floyd N. Shaver, appellant.

PER CURIAM.

The movant, Carpenter, is a stranger to this cause. He is neither party nor privy.

The general rule is that a stranger to the record, who is neither a party nor a privy to the action, unless authorized by statute, ordinarily has no standing to vacate a judgment by a motion in the cause. Smith v. City of Newbern, 73 N.C. 303; Edwards v. Phillips, 91 N.C. 355; Johnson v. Johnson, 142 N.C. 462, 55 S.E. 341; In re Hood ex rel. Carolina State Bank of Gibson, 208 N.C. 509, 181 S.E. 621; 49 C.J.S., Judgments, § 293, p. 540; 31 Am. Jur., Judgments sec. 722; Annotations: 99 A.L.R. p. 1310; 12 A.L.R.2d p. 727.

This fatal defect appears on the face of the record. This being so, it is immaterial whether notice of hearing on Carpenter's motion was properly served on plaintiff and defendant. This Court takes notice ex mero motu that Carpenter cannot proceed with his motion and will order it dismissed. Cf. Garrison v. Williams, 150 N.C. 674, 64 S.E. 783; Watson v. Lee County, 224 N.C. 508, 31 S.E.2d 535; Aiken v. Sanderford, 236 N.C. 760, 73 S.E. 2d 911.

In accordance with this opinion, the lower court will enter an order dismissing Carpenter's said motion.

Docketed as No. 674, Fall Term, 1955, this appeal was carried over and docketed as No. 666, Spring Term, 1956. This appeal, and the appeal in Carpenter v. Carpenter, N.C., 93 S.E.2d 617, were argued together at Fall Term, 1955. As will be observed, in Carpenter v. Carpenter, an independent action for annulment, Carpenter (the movant herein) undertakes to attack collaterally the same divorce decree.

Reversed.