Downing v. White
| Decision Date | 16 December 1936 |
| Docket Number | 678. |
| Citation | 188 S.E. 815,211 N.C. 40 |
| Parties | DOWNING v. WHITE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Bladen County; Clawson L. Williams Judge.
Action by Harriet Downing against H. J. White. From a judgment for defendant, plaintiff appeals.
New trial.
N.C 1937. Right to attack judgment on ground of non-service would not be denied because papers in suit except judgment had been lost.
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, judgment rendered against him is void for want of jurisdiction.
Civil action in ejectment to redeem and to remove cloud on title.
The locus in quo consists of two tracts of land situate in Bladen county-one a 36-acre tract; the other containing 140 acres.
It is admitted that June Dix acquired title to the 40-acre tract in 1887, and to the 140-acre tract in 1888. He conveyed both tracts to Harriet Dix, now Harriet Dix Downing, by deed dated November 7, 1921, duly registered in Bladen county. Plaintiff and defendant both claim title from a common source.
Thereafter it is alleged, suit was brought by Bridger Corporation against June Dix and Harriet Dix, first, to recover on a note given by June Dix to the Bridger Corporation, and, second, to set aside the aforementioned deed from June Dix to Harriet Dix as a fraudulent conveyance so far as creditors were concerned. Carswell v. Talley, 192 N.C. 37, 133 S.E 181. There was a judgment for the plaintiff in said action, rendered at the January term, 1924, decreeing the deed in question to be null and void and ordering its cancellation. All the papers in this proceeding, save the judgment, seem to have been lost.
The plaintiff testified that no summons was ever served on her in the case of "Bridger Corporation v. Dix," the only title appearing on the judgment, and this was corroborated by her father, with whom she lived at the time. The court held that the judgment rendered in said action, canceling plaintiff's deed, was a bar to her right to recover in the present proceeding, and instructed the jury accordingly.
Verdict and judgment for defendant, from which plaintiff appeals, assigning errors.
A. M. Moore, of Fayetteville, for appellant.
H. H. Clark, of Elizabethtown, for appellee.
This is the same case that was before us on a procedural question at the Spring term, 1934, reported in Dix-Downing v. White, 206 N.C. 567, 174 S.E. 451.
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, a judgment rendered against him is void for want of jurisdiction. Dunn v. Wilson, 210 N.C. 493, 187 S.E. 802; Guerin v. Guerin, 208 N.C. 457, 181 S.E. 274; Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20; Pinnell v. Burroughs, 168 N.C. 315, 84 S.E. 364; Card v. Finch, 142 N.C. 140, 54 S.E. 1009; Bernhardt v. Brown, 118 N.C. 700, 24 S.E. 527, 529, 715, 36 L.R.A. 402; Armstrong v. Harshaw, 12 N.C. 187.
True, "where it appears from the record that a person was a party to an action, when in fact he was not, the legal presumption that he was properly a party is conclusive until removed by a correction of the record itself by a direct proceeding for that purpose." Smathers v. Sprouse, 144 N.C. 637, 57 S.E. 392, 393; Doyle v. Brown, 72 N.C. 393. In other words, where it affirmatively appears from the record in a case that one was duly served or made a party thereto, the remedy for establishing the fact of nonservice or "false return," if such be the fact, is by motion in the cause and not by an independent action. Davis v. Brigman, 204 N.C. 680, 169 S.E. 421; Long v. Rockingham, 187 N.C. 199, 121 S.E. 461; King v. R. Co., 184 N.C. 442, 115 S.E. 172; Eure v. Paxton, 80 N.C. 17. Here, however, it does not appear that Harriet Dix was ever a party, or attempted to be made a party, to the action of "Bridger Corporation v. Dix." The papers have been lost, with the exception of the judgment, and the only title to the judgment is "Bridger Corporation v. Dix." So, under the circumstances, it not appearing that Harriet Dix was ever a party to said proceeding, we apprehend her right presently to attack the judgment rendered therein as a cloud on her title ought not to be denied. Stocks v. Stocks, 179 N.C. 285, 102 S.E. 306; Truelove v. Parker, 191 N.C. 430, 132 S.E. 295. Nothing was said in Clark v. Carolina Homes, supra, Pinnell v. Burroughs, supra, Bailey v. Hopkins, 152 N.C. 748, 67 S.E. 569, Hargrove v. Wilson, 148 N.C. 439, 62 S.E. 520, Rackley v. Roberts, 147 N.C. 201, 60 S.E. 975, Brickhouse v. Sutton, 99 N.C. 103, 5 S.E. 380, 6 Am.St.Rep. 497, or Sumner v. Sessoms, 94 N.C. 371, which militates against this position.
The laboring oar, of course, is with the plaintiff, as a prima facie presumption of jurisdiction arises from the exercise of it, and throws the burden of disproving its existence upon the party denying it. Starnes v. Thompson, 173 N.C. 466, 92 S.E. 259.
Should the papers be found, and the fact of nonservice appear on the face of the record, plaintiff's right to attack the judgment would ipso facto be established. Graves v Reidsville Lodge No. 2128, 182 N.C. 330, 109 S.E. 29. Non constat that this right should be denied simply because the papers have been lost. Pinnell v. Burroughs, supra; Massie v. Hainey, 165 N.C. 174, 81...
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