Dunn v. Wilson

• Decision Date: 14 October 1936
• Docket Number: 167.
• Parties: DUNN et al. v. WILSON et al.
• Court: North Carolina Supreme Court

187 S.E. 802

210 N.C. 493

DUNN et al. v. WILSON et al.

No. 167.

Supreme Court of North Carolina

October 14, 1936

Appeal from Superior Court, Vance County; E. H. Cranmer, Judge.

Action by W. W. Dunn and another against W. W. Wilson, Drucilla Wilson, and others. Verdict and judgment for plaintiffs, and from an order overruling their motion to vacate the verdict and to set aside the judgment, the named defendants appeal.

Error.

On motion to set aside judgment for nonservice of process, trial judge upon request duly made must find facts, so that ruling upon motion may be reviewed, and refusal to accede to request is reversible error.

Civil action to recover for parent's loss of services and injury to minor child, alleged to have been caused by the negligence of the defendants in the operation of an automobile.

No answer having been filed and no appearance made by any of the defendants, there was a verdict and judgment for plaintiffs entered at the October term, 1929, Vance superior court. Execution issued September 27, 1935.

Thereupon motions were lodged by the defendants to vacate verdict and to set aside judgment for want of any previous knowledge of the proceeding; it being alleged that no summons was ever served upon the defendants, or any of them, and that no appearance was ever made by any of the defendants in the action. Motion allowed as to Plummer, Minnie, and Arnie Wilson, and overruled as to the other defendants.

The record discloses that "the defendants, W. W. Wilson and Drucilla Wilson, asked the court to find the facts; request denied; defendants except," and appeal.

Julius Banzet and Frank Banzet, both of Warrenton, for appellants.

Kittrell & Kittrell and A. A. Bunn, all of Henderson, for appellees.

STACY Chief Justice.

Service of summons or original process, unless waived, is a jurisdictional requirement. Stancill v. Gay, 92 N.C 462. Hence a judgment in personam rendered against a defendant without voluntary appearance or service of process is void. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283. If the defect appear on the face of the papers or is discernible from an inspection of the record, the judgment may be treated as a nullity, vacated on motion, or attacked collaterally. Graves v. Reidsville Lodge, 182 N.C. 330, 109 S.E. 29; Stocks v. Stocks, 179 N.C. 285, 102 S.E. 306; McKee v. Angel, 90 N.C. 60.

On the other hand, if the officer's return show service, as here, which under the statute, C.S. § 921, is deemed prima facie correct or "sufficient evidence of its service," Caviness v. Hunt, 180 N.C. 384, 104 S.E. 763; Burlingham v. Canady, 156 N.C. 177, 72 S.E. 324; Marler-Dalton-Gilmer Co. v. Clothing & Shoe Co., 150 N.C. 519, 64 S.E. 366, when in fact no such service has been had, the fact of nonservice or "false return" may be established by clear and unequivocal proof, Lake Drainage Com'rs v. Spencer, 174 N.C. 36, 93 S.E. 435, McIntosh, N.C. P. and P. § 316, p. 313; and upon such showing, the party affected may have the judgment set aside on motion duly entered in the cause. Long v. Rockingham, 187 N.C. 199, 121 S.E. 461; Herndon v. Autry, 181 N.C. 271, 107 S.E. 3; Stocks v. Stocks, supra; Johnson v. Whilden, 171 N.C. 153, 88 S.E. 223, 225; Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Flowers v. King, 145 N.C. 234, 58 S.E. 1074, 122 Am.St.Rep. 444.

Speaking to the point in Chadbourn v. Johnston, 119 N.C. 282, 25 S.E. 705, 706, Furches, J., delivering the opinion of the court, said: "They were made defendants in the summons issued in the case, which was returned executed, though in truth and in fact it was not executed on Rebecca A. Watkins and W. J. Johnston. This prima facie gave the court jurisdiction, and authorized it to proceed to judgment. But this presumption might be rebutted by showing that in fact it had not been served; and, if nothing more had occurred, upon the court's finding this fact it would have been the duty of the court to set aside the judgment."

When considering such motion, upon request duly made, it is the duty of the judge to find the facts, so that his ruling upon the motion may be reviewed, and his refusal to accede to such request is reversible error. State v. Harris, 204 N.C. 422, 168 S.E. 498; Holcomb v. Holcomb, 192 N.C. 504, 135 S.E. 287; McLeod v. Gooch, 162 N.C. 122, 78 S.E. 4; Norton v. McLaurin, 125 N.C. 185, 34 S.E. 269. Compare McKeel Hardware Co. v. Buhmann, 159 N.C. 511, 75 S.E. 731.

True in the absence of such request, it will be presumed that sufficient facts were found to support the judgment. Commissioner of Revenue v. Realty Co., 204 N.C. 123, 167 S.E. 563; State v. Harris, supra; Holcomb v. Holcomb, supra; Gardiner v. May, 172 N.C. 192, 89 S.E. 955. But the presumption may not be indulged in the face of a refusal to find the facts. This is the rationale of the decisions on the subject. McLeod v. Gooch, supra; Smith v. Whitten, 117 N.C. 389, 23 S.E. 320; Carter v. Rountree, 109 N.C. 29, 13 S.E. 716; Albertson v. Terry, 108 N.C. 75, 12...