Doyle v. Brown

• Decision Date: 31 January 1875
• Citation: 72 N.C. 393
• Court: North Carolina Supreme Court
• Parties: M. M. DOYLE and others v. JOHN E. BROWN, Guardian ad litem of MARY A. LEEPER.

72 N.C. 393

M. M. DOYLE and others

v.JOHN E. BROWN, Guardian ad litem of MARY A. LEEPER.

Supreme Court of North Carolina.

January Term, 1875.

Where a defandant has never been served with process,, nor appeared in person, or by attorney, a jndgment against him is not simply voidable, but void; and it may be so treated wherever, and whenever offered, without any direct proceeding to vacate it.

If a record shows oue to be plaintiff, when in fact he was not, it stands as where the record shows one to be defendant, when he was not. In both cases, the record is conclusive, until corrected by a direct proceeding for that purpose.

PETITION to set aside a decree and for other relief, heard before Logan, J., at Spring Term, 1874, MECKLENBURG Superior Court.

The following are the substantial facts, as found by the Court, by consent of the parties, and sent up as part of the record.

James Lonnegan died in the county of Mecklenburg, in the year 1860, seized and possessed of a house and lot in the city of Charlotte, and a tract of land in the county of Gaston. Lonnegan had no lineal descendants, but left brothers and sisters, and the children of brothers and sisters, as his heirs-at-law. The plaintiffs are the nephews and nieces, and entitled by representation to one fourth part of his estate.

In December, 1862, a petition was filed in the Court of Equity for Mecklenburg county, for the sale of the real estate of the said James Lonnegan, for the purpose of a division among the heirs-at-law, including the plaintiffs, now petitioners. At December Term of said Court, a decree was made directing said lands, viz: the house and lot in the city of Charlotte, and the plantation in the county of Gaston, to be sold.

Said real estate was sold on the 22d day of December, 1862, when Edward Lonnegan, one of the petitioners, in his own right, and as next friend for certain minor children, became the last bidder for the town lot, at seven thousand dollars, and that the Gaston county lands brought $7,750 in Confederate money; John Pendergrast, another of the petitioners, becoming the highest bidder. The bid of Pendergrast was transferred to Young & Winston. At Spring Term of said Court, 1863, the sale was confirmed, the purchasers giving their notes at six months. In the month of May, said notes were paid in Confederate money, and titles made to the purchasers, viz: to Edward Lonnegan, for the town lot, and to Young & Winston for the Gaston plantation.

Afterwards, all the said petitioners, except the plaintiff, recovered from the Clerk and Master their part of the proceeds of said sale. It is further found by the Court, the same question having been heretofore passed upon by a jury, that at the time the said bill in equity was filed for sale of said lands, and at the time of said decree the plaintiffs were non-residents of this State and were residents of the State of Arkansas. That they had no notice or knowledge of the filing of the said bill in equity nor of the said decree and sale, nor of the confirmation thereof; and that the plaintiffs have not in any way assented to or ratified the said proceedings since they came to their knowledge in the year 1867. The Court further finds that Edward Lonnegan either occupied or received the rents of the house in Charlotte up to the time of his death; that by his last will and testiment he devised the same and lot to the defendant, who has...