Adams Et Ux v. Cleve

• Decision Date: 16 October 1940
• Docket Number: No. 312.,312.
• Citation: 218 N.C. 302,10 S.E.2d. 911
• Court: North Carolina Supreme Court
• Parties: ADAMS et ux. v. CLEVE et al.

10 S.E.2d. 911

218 N.C. 302

ADAMS et ux.

v.CLEVE et al.

No. 312.

Supreme Court of North Carolina.

Oct. 16, 1940.

Appeal from Superior Court, Pitt County; Luther Hamilton, Special Judge.

Action by J. Q. Adams and wife against D. W. Cleve and others to enforce the lien of a judgment on certain land. From an order sustaining plaintiffs' demurrer ore tenus to the answer and a judgment for plaintiffs on. the pleadings, defendants appeal.

Reversed.

Julius Brown and J. B. James, both of Greenville, for plaintiffs-appellees.

Dink James, of Greenville, for defendants-appellants.

DEVIN, Justice.

Plaintiffs instituted this action to enforce the lien of a judgment upon land now in the possession of defendant Smith. In their complaint they alleged that in 1926 judgment was rendered in their favor and against the defendants Wall, constituting a lien on the land of defendant Sophronia Wall, and that upon this judgment execution was issued and the homestead of Sophronia Wall allotted in this land, in 1927. Plaintiffs further alleged that in 1938 Sophronia Wall and her husband conveyed the land to defendants Cleve, who in turn conveyed to defendant Smith, who is now in possession.

Defendants answered denying the validity of the judgment and of the homestead allotment, and alleging that the judgment was void for that no summons, or notice of any kind, was ever served on Sophronia Wall, who was at that time under the age of twenty-one years, and that no notice of execution or homestead appraisal or allotment was ever served or given her, and that if the alleged judgment ever had vital-ity, which was denied, it was now barred by the statute of limitations.

At the hearing plaintiffs demurred ore tenus to the answer and moved for judgment on the pleadings. The court below sustained the demurrer and allowed the motion for judgment on the pleadings. The ruling of the court was based upon certain findings of fact, in addition to those set out in the answer, which findings were incorporated in the judgment.

The plaintiff's demurrer to the answer and motion for judgment on the pleadings challenged the sufficiency of the matters set up in the answer to constitute, a defense to the plaintiffs' cause of action, Pridgen v. Pridgen, 190 N.C. 102, 129 S.E. 419; Mitchell v. Strickland, 207 N.C. 141, 176 S.E. 468; Cody v. Hovey, 216 N.C. 391, 5 S.E.2d 165; Sills v. Morgan, 217 N.C. 662, 9 S.E.2d 518; and in the consideration of the demurrer and motion the rule applies that the allegations of facts contained in the answer, and relevant inferences of fact necessarily deducible therefrom, are deemed admitted, and that the allegations are to be construed liberally in favor of the pleader. Ballinger v. Thomas, 195 N.C. 517, 142 S.E. 761; Bessire & Co. v. Ward, 206 N.C. 858, 175 S.E. 208; Mitchell v. Strickland, supra; Commerce Ins. Co. v. McCraw, 215 N.C. 105, 1 S.E.2d 369; Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217; C.S. § 535.

Hence it would seem that the allegations in the answer that the judgment sued on was void for want of service of summons or other process on defendant Sophronia Wall who was then a minor, and that judgment was rendered without notice to her, must be held to constitute a defense, in the absence of any facts to negative the conclusion asserted. Service of Summons is a jurisdictional requirement. Stancill v. Gay, 92 N.C. 462; Guerin v. Guerin, 208 N.C. 457, 181 S.E. 274; Downing v. White, 211 N.C. 40, 188 S.E. 815; Denton v. Vassi-liades, 212 N.C. 513, 193 S.E. 737; Groce v. Groce, 214 N.C. 398, 199 S.E. 388.

While it is an established principle in this jurisdiction that a judgment based upon apparent service of process by a proper officer may not be collaterally impeached the officer's return being deemed prima facie sufficient evidence of service(C. S. § 921), and that in such case the correct procedure for rebutting the presumption and asserting failure of service is by motion in the cause (Lake Drainage Commissioners v. Spencer, 174 N.C. 36, 93 S.E. 435; Stocks v. Stocks, 179 N.C. 285, 102 S.E. 306; Caviness v. Hunt, 180 N.C. 384, 104 S.E. 763; Graves v. Reidsville Lodge, 182 N.C. 330, 109 S.E. 29; Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; Downing v. White, supra), this principle is not available to the plaintiffs on the demurrer to the answer in this case. To sustain the demurrer the plaintiffs must call to their aid facts which do not appear in the answer. Von Glahn v. De Rossett, 76 N.C. 292; Kendall v. Highway Commission, 165 N.C. 600, 81 S.E. 995; Sandlin v. Wilmington, 185 N.C. 257, 116 S.E....