Chatham County NcArchives Court.....W. Mangum Johnson, Adella V. Johnson V. 1906
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Source: N C Reports
Written: 1906

Johnson v. Johnson

(Filed October 30, 1906)

1. Upon a motion by the plaintiff to set aside a decree of the Superior Court 
upon the ground that the Court had acquired no jurisdiction, one who was not a 
party to the action, but claims that his title will be affected if the decree 
is set aside, has no right to be heard upon this motion.

2. An action to annul a marriage contract on the ground of incapacity, is a 
proceeding for divorce, and the affidavit required in divorce cases being 
jurisdictional, in the absence of it the Court is powerless to make a decree 
invalidating the marriage, and the plaintiff's motion to set it aside was 
properly allowed.

Action by Adella V. Johnson against W. Mangum Johnson, heard by Judge Fred. 
Moore at the May Term, 1906, of the Superior Court of Chatham.

This was a motion by the plaintiff to set aside a decree invalidating her 
marriage to the defendant. At the same time, J. A. Dark (the appellant) made 
application to be allowed to intervene and oppose said motion. The motion and 
application were heard by Judge Moore, who denied the application of Dark and 
granted the plaintiff's motion, from which judgment the said Dark appealed, 
and assigns as error, first, that the Court erred in refusing the said 
application to intervene, and second, that the Court erred in granting the 
plaintiff's motion.

This case is reported in 141 NC, 91, which is referred to for the facts.

H. A. London & Son, R. H. Hayes and W. D. Siler for the appellant.
N. Y. Gulley and R. H. Dixon contra.

NC Supreme Court Justice Brown, J. - The petitioner, Dark, bases his right to 
intervene upon the ground that "the affiant is the owner of certain real 
property, which is a part of the property described in the complaint in this 
action, having paid a full and fair price for the same and taken a deed 
therefor from H. A. London, W. D. Siler, and R. H. Hayes, who, as he is 
informed and believes, had purchased the same from the plaintiff, and that as 
such owner he desires to interplead in this cause and set up his rights." His 
Honor denied Dark's application to intervene on the hearing of the plaintiff's 
motion, and then adjudged "that so much of the decree made at May Term, 1905, 
as declares the marriage of Adella V. Johnson and W. Mangum Johnson to be null 
and void, to be set aside, the same being irregular and void, the pleadings 
not being verified as required by statute, the Court had no jurisdiction to 
make such decree, and the parties are allowed to resume their former relation 
as husband and wife."

The petitioner, Dark, had no right to be heard upon this motion. Pomeroy Code 
Rem., secs. 320 and 321. He was not a party to the action, and cannot be heard 
on a motion to set aside the decree made by the plaintiff upon the ground that 
the Superior Court had acquired no jurisdiction. If it should turn out upon a 
trial that his title is affected because the Court set aside a decree it had 
no jurisdiction to render, it is his misfortune.

This is a proceeding for divorce. Lea v. Lea, 104 NC, 603. It is so held in 
this case in the concurring opinion on the former appeal, which the writer 
approves. The affidavit required in divorce cases being jurisdictional, it 
follows that in the absence of it the Court was powerless to make the decree, 
which has therefore been properly set aside. Hopkins v. Hopkins, 132 NC, 22.

Appeal Dismissed.

Additional Comments:
In the NC Supreme Court Fall Term 1906

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