Bacon v. Johnson

• Citation: 14 S.E. 508,110 N.C. 114
• Parties: BACON v. JOHNSON et al.
• Decision Date: 16 February 1892
• Court: United States State Supreme Court of North Carolina

14 S.E. 508

110 N.C. 114

BACON v. JOHNSON et al.

Supreme Court of North Carolina

February 16, 1892

Appeal from superior court, Craven county; HENRY R. BRYAN, Judge.

Action by Samuel Bacon against Greenleaf Johnson and others. Judgment by default of plaintiff, which defendants, at next term, moved to set aside. The motion was denied, and defendants appeal. Reversed.

The other facts fully appear in the following statement by MERRIMON, C.J.:

It appears that the defendants were non-residents of this state when, next before and next after, this action begun, on the 18th of February, 1891. The summons was issued against them and the sheriff returned the same indorsed, "Not to be found in my county." Thereupon the attorney of the plaintiff made his affidavit, the material part of which is as follows: "That defendants, upon whom service of summons is to be made, cannot, after due diligence, be found within the state of North Carolina, and he is informed and believes they are residents of the state of Maryland; that a cause of action exists against them in favor of plaintiff and that they are proper parties to the same, which said action relates to real property in this state, to-wit specific performance of a contract to convey a tract of land lying in Craven county. Therefore affiant prays that service of summons upon defendants be ordered by publication, as required by law in such cases." Upon motion of plaintiff, founded upon this affidavit, the court made its order directing that publication be made of the summons and notice to defendants in the Newbern Journal, a newspaper, for six weeks, requiring them to appear. Such publication was made; and at spring term, 1891, of the superior court, the plaintiff filed his complaint, and, the defendants failing to appear, he obtained judgment by default final for want of an answer. At fall term, 1891, the defendant's counsel appearing for the purpose of the motion, moved "to set aside and declare void and irregular" the said judgment, basing his motion upon these grounds: "(1) That no service of summons or notice, according to the laws of North Carolina, was made upon the defendants, or any of them; (2) that the pretended service by publication is irregular and fatally defective; (3) that the judgment is inconsistent with the allegations of the complaint and not warranted by the same; (4) that defendants are non-residents of the state of North Carolina, and desire to be allowed to defend the action as is provided in section 220 of the Code; (5) that defendants have a good and meritorious defense, both in law and in fact, to said action; (6) that said court is without jurisdiction to render said judgment on any constructive service of notice; (7) any and all other defects or irregularities appearing in the record, which may properly be made to appear to the court." The court denied the motion, and gave the following judgment: "This cause coming on to be heard at fall term, 1891, on motion of defendants to set aside the judgment heretofore rendered, under special appearance of counsel for the defendants for that purpose, upon the ground that the judgment is void and irregular, and that they be allowed to come in and defend the action; and it being found as a fact by the court that on the 18th of February, 1891, the plaintiff was aware of the residence of defendants; and the court further finding as a fact that there was but one affidavit before it, (the affidavit of Howard N. Johnson,) and no oral testimony being heard; and the court further finding from said evidence, to-wit, the record and the said affidavit, that no just or reasonable cause has been shown why the said judgment should be set aside as irregular and void, or that the defendants be allowed to come in and defend said action; and the court further finding as a fact that the defendants are non-residents of this state: Now, on motion of O. H. Guion, the attorney of record for plaintiff in this action, the motion of defendants to set aside the judgment, and to be allowed to come in and defend the action under section 220 of the Code, are both denied, and the defendants will pay the costs," etc. From which judgment the defendants appealed.

W. L. Williams, for appellants.

O. H. Guion, for appellee.

MERRIMON C.J., (after stating the facts.)

The service of the summons or notice as original process in the action by publication must be made strictly in accordance with the requirements of the statute. Code, §§ 218, 219. This method of service of process and giving the court jurisdiction is peculiar, and out of the usual course of procedure. The...