Bernhardt v. Brown

• Decision Date: 21 April 1896
• Citation: 118 N.C. 700,24 S.E. 527
• Court: North Carolina Supreme Court
• Parties: BERNHARDT et al. v. BROWN et al.

24 S.E. 527

118 N.C. 700

BERNHARDT et al.

v.BROWN et al.

Supreme Court of North Carolina.

April 21, 1896.

Service op Process—Publication Proceedings in Rem — Judgment — Collateral Attack — Presumption—New Trial—Hearing ok Motion —Settins out Exceptions to Charge—Execution—Junior Judgments.

1. Code, § 218, subsec. 4, providing for services by publication when defendant cannot, after due diligence, be found, where the subject of the action is real or personal property in the state, and defendant has or claims an interest therein, or the relief demanded consists wholly or partly in excluding defendant from any interest therein, authorizes service by publication in proceedings to enforce a mechanic's lien, if defendant cannot be found, whether he be a resident or nonresident of the state.

2. An action to foreclose a mechanic's lien being a proceeding in rem, it is not necessary to acquire jurisdiction by attachment of the property, the mere bringing of the suit in which the claim is sought to be enforced being equivalent to seizure.

3. A judgment under which land has been sold, if void for want of due service of process, may be collaterally attacked by one who has purchased under a junior judgment

4. A judgment will be presumed valid on collateral attack, in the absence of the transcript of the proceedings in which it was rendered.

5. Prior to Act 1889, c. 108, there was no provision for service of process upon a domestic corporation whose officer could not, after due diligence, be found, and hence a judgment against such corporation on substituted service was void.

6. The legislature may legally prescribe that service on parties residing in the state may be had by publication when such parties cannot, after due diligence, be found, not only in cases where they have left the state, or have concealed themselves therein with intent to defraud creditors or avoid service of summons, but also where such intent cannot be shown.

7. In passing Act 1889, c. 108, authorizing publication of the summons against a domestic corporation where officers cannot, after due diligence, be found, the legislature omitted to amend the attachment law so as to permit an attachment of defendant's property in such cases; and hence, the action being in personam, service on such corporation by publication is ineffectual for any purpose.

8. The grounds of exceptions to the charge need not be set out on motion for new trial, it being sufficient if such exceptions appear in appellant's statement on appeal.

9. The purchaser at a sale under an execution issued on a junior judgment acquires the title of defendant in execution subject only to the lien of the senior judgments.

10. If the executions on the senior judgments are in the sheriff's hands at the time of such sale the purchaser gets the full title, and the lien of the senior judgments is transferred to the proceeds of the sale.

Appeal from superior court, Burke county; Bryan, Judge.

Action by J. M. Bernhardt and others against George W. Brown and others for the recovery of land. Judgment for defendants, and plaintiffs appeal. Reversed.

The jury in the lower court found all the facts upon issues submitted to them by the court, to which issues there were no exceptions. They found that there had been two execution sales of the land in controversy; that at the first sale, made May 6, 1889, when the defendant George W. Brown purchased, the sheriff sold under four executions; that at the second sale, made July 8, 1890, when the plaintiffs (or John Paalzour, under whom they claim) purchased, the sheriff sold under only one execution, and that an execution issued on a judgment in favor of John Paalzour. The executions under which the first sale was made issued on judgments in favor of A. H. Wilson, the Shuford Hardware Company, Dunovant & McConnaughey, and Brown & McDowell; all against the North Carolina Estate Company, Limited. The A. H. Wilson judgment was rendered in the superior court of Burke county on the 4th day of March, 1889, in an action brought by him for the enforcement of two mechanics' liens, filed July 16, 1888, against certain town lots in Glen Alpine, for work and labor done thereon. This judgment was for $359.60 and costs, and the same was declared a lien on said lots from July 16, 1888, the date of filing said liens. The execution which issued on this judgment, March 30, 1889, declared the same a lien from July 16, 1888, on said lots, and ordered the sheriff to sell said lots to pay the same. The other three judgments were justices' judgments in attachments, and were declared to be liens upon the land in controversy and upon the Glen Alpine lots. The judgment in favor of Dunovant & McConnaughey and the Shuford Hardware Company were both rendered the same day, in actions begun the same day, and transcripts issued and docketed the same day. In each of these cases a warrant of attachment was issued the same day, and levied by the sheriff the same day, January 24, 1889, upon the land in controversy, and upon the Glen Alpine lots. Judgments were rendered in these two actions on February 22, 1889, and transcripts docketed in the superior court of Burke county, February 25, 1889. The judgment in each of these actions was declared a lien upon the land in controversy, and upon the Glen Alpine lots. Executions issued on these two judgments from the superior court of Burke county, —on the Shuford judgment, April 1, 1889, and on the Dunovant & Mc-Connaughey judgment, May 1, 1889. The judgment in favor of Brown & McDowell was rendered April 6, 1889. The warrant of attachment had been issued, and the same was levied upon the land in controversy, on March 8, 1889; and the judgment was declared an attachment lien on the said land and lots, and a transcript of said judgment was docketed in the superior court May 1, 1889, and execution issued May 1, 1889. Under executions issued on these four judgments the land in controversy was sold May 6, 1889, and defendants purchased. There was no personal service of summons upon the North Carolina Estate Company, Limited, in any of these cases, but in all of them there was constructive service by publication. In three of them an attachment levied upon the land in controversy and publication thereof; in the other, a statutory lien upon the Glen Alpine lots and publication. At the sale May 6, 1889, when the defendants purchased, under these four executions, the Glen Alpine lots were first sold, and realized $200, which was not sufficient to discharge the A. H. Wilson execution, which was the first lien thereon. At the second sale, made July 8, 1890, when the plaintiffs purchased, the sheriff sold only under one execution, issued from the superior court of Catawba county March 8, 1890, on a judgment in favor of John Paalzour against the same company, rendered m said court at spring term. 1890. a transcript of which was received and docketed in Burke county March 10, 1890.

J. G. Bynum, J. T. Perkins, G. N. Folk, and Edmund Jones, for appellants.

Shepherd & Busbee, S. J. Ervin, and Isaac T. Avery, for appellees.

CLARK, J. "Due process of law" requires that service of process shall always be made. There are three modes in which this can be done: (1) By actual service, or, in lieu thereof, acceptance of service or a waiver of service by an appearance in the action. Whether actual service shall be made by reading the summons or notice to the defendant, or leaving a copy with him personally or at his usual place of residence, is for the legislature to prescribe. Code, §§ 214, 217, 597. (2) By publication of summons in cases in which it is authorized by law in proceedings in rem. In these cases the court already has jurisdiction of the res, as to enforce some lien or a partition of property in its control or the like; and the judgment has no personal force, not even for costs, being limited to acting upon the property. (3) By publication of the summons, in cases...