American Institute of Marketing Systems, Inc. v. Willard Realty Co., Inc. of Raleigh

• Decision Date: 14 October 1970
• Docket Number: No. 20,20
• Court: North Carolina Supreme Court
• Parties: AMERICAN INSTITUTE OF MARKETING SYSTEMS, INC. v. WILLARD REALTY COMPANY, INC. OF RALEIGH.

Page 775

176 S.E.2d 775

277 N.C. 230

AMERICAN INSTITUTE OF MARKETING SYSTEMS, INC. v. WILLARD REALTY COMPANY, INC. OF RALEIGH.

No. 20.

Supreme Court of North Carolina.

Oct. 14, 1970.

Boyce, Mitchell, Burns & Smith, Raleigh, for defendant appellant.

Jordan, Morris & Hoke, Raleigh, for plaintiff appellee.

LAKE, Justice.

The appellant contended, in the Court of Appeals and before this Court, that the provision in the contract between the parties hereto for the appointment of George M. Kinder as agent of the defendant, 'for the receipt of any legal documents including process' required for the enforcement of the contract, was not sufficient to enable the Missouri court to acquire jurisdiction, so as to render a judgment in personam against the defendant, by the service of summons upon Kinder. The briefs and arguments of the parties in the Court of Appeals and before us were directed to this question alone. The Court of Appeals determined it in favor of the plaintiff. It held this provision in the contract is a sufficiently clear and definite announcement to the defendant that, by entering into such contract, he consented to being sued in Missouri in an action in which summons was served upon Kinder as the defendant's agent. Accordingly, the Court of Appeals affirmed the judgment of the District Court of Wake County in favor of the plaintiff. We reverse without reaching this question and without expressing any opinion thereon.

Article IV, § 1, of the Constitution of the United States, provides, 'Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.' Nevertheless, if the Missouri court, which rendered this judgment in personam against the defendant, did not have jurisdiction over the person of the defendant, the judgment is void even in Missouri. Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283, reh. den., 358 U.S. 858, 79 S.Ct. 10, 3 L.Ed.2d 92; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In the Hanson case, the Court said:

'* * * With the adoption of that (Fourteenth) Amendment, any judgment purporting to bind the person of a defendant over whom the court had not acquired In personam jurisdiction was void within the State as well as without. * * *

'* * * Delaware is under no obligation to give full faith and credit to a Florida judgment invalid in Florida because offensive to the Due Process Clause of the Fourteenth Amendment. 28 U.S.C. § 1738. Even before passage of the Fourteenth Amendment this Court sustained state courts in refusing full faith and credit to judgments entered by courts that were without jurisdiction over nonresident defendants. D'Arcy v. Ketchum, 11 How. 165, 13 L.Ed. 648; Hall v. Lanning, 91 U.S. 160, 23 L.Ed. 271. See Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386; Riley v. New York Trust Co., 315 U.S. 343, 62 S.Ct. 608, 86 L.Ed. 885.'

When suit is brought in a court of this State upon a judgment rendered by a court of another state, before reaching any question as to the validity of a statute of such other state purporting to provide a substitute for personal service of process upon a nonresident thereof, or any question as to the validity and effect of a purported appointment by the defendant of an agent for the service of process upon him in the other state, the courts of this State must first determine whether summons was served in accordance with the law of the state in which the judgment was rendered. 'It is elementary that unless one named as a defendant has been brought into court in some way sanctioned by law, or makes a voluntary appearance in person or by attorney, the court has no jurisdiction of the person and judgment rendered against him is void.' Thomas v. Frosty Morn Meats, Inc., 266 N.C. 523, 146 S.E.2d 397; Powell v. Turpin, 224 N.C. 67, 29 S.E.2d 26.

Assuming, without deciding, that Kinder was the duly appointed agent of the defendant for service of summons in Missouri, it appears upon the face of the transcript of the Missouri judgment that the purported service was 'by leaving a true copy hereof (i.e., the summons) at the regular business office of the within named appointed agent, George M. Kinder.' The return does not purport to show a delivery of the summons to Kinder or to any other person in the office. It does not purport to show that anyone was present in the office when the constable left the summons therein. For all that appears...