Graves v. Reidsville Lodge No. 2128

• Decision Date: 02 November 1921
• Docket Number: 353.
• Citation: 109 S.E. 29,182 N.C. 330
• Parties: GRAVES v. REIDSVILLE LODGE NO. 2128 ET AL.
• Court: North Carolina Supreme Court

109 S.E. 29

182 N.C. 330

GRAVES v. REIDSVILLE LODGE NO. 2128 ET AL.

No. 353.

Supreme Court of North Carolina

November 2, 1921

Appeal from Superior Court, Rockingham County; Webb, Judge.

Actions by R. S. Graves against Reidsville Lodge No. 2128 and others before a justice. Judgment for plaintiff set aside by the justice, and plaintiff's motion to dismiss denied, and he appealed to Superior Court. Motion to dismiss granted, and named defendant excepts and appeals. Reversed.

Motion to set aside three several judgments on a money demand entered against defendant lodge et al., heard on appeal from a justice court before his honor J. L. Webb, judge presiding at February term 1921, of the superior court of Rockingham county. The justice having set aside judgment for lack of service and on allegations tending to establish fraud, on appeal his honor, being of opinion that the justice was without jurisdiction to entertain the motion for the reason that an issue of fraud was involved, dismissed the proceedings. The ruling of his honor and the reason for it are more fully embodied in the judgment as follows:

"The court finds as a fact that there is an issue of fraud arising upon the motion and affidavits in the bringing of said action and obtaining said judgment before the justice of the peace, and, that fact appearing to the court, on motion of the plaintiff that the said motion of the defendant to set aside the judgment be dismissed, on the ground that the justice had no power to hear and determine the matter, and that said justice had no power to make his findings of fact and render said judgment as herein set out as to fraud, the court finding as a fact that an issue of fraud arises herein and the justice had no jurisdiction of that issue, it is further ordered and adjudged that the finding of fact and judgment of the said justice be overruled, and that the said motion be dismissed, and that the motion of the plaintiff to dismiss is hereby sustained and that the defendant be taxed with the cost of this proceeding."

Defendant lodge excepted and appealed.

J. M. Sharp, of Reidsville, for appellant.

P. W. Glidewell and W. R. Dalton, both of Reidsville, for appellee.

HOKE J.

It is the accepted principle here and elsewhere that a judgment in personam without voluntary appearance or service of process within the jurisdiction is void, and where the fact appears on inspection of the record, such a judgment may be treated as a nullity, or it will be set aside on motion and the party charged allowed to make his defense. And where the lack of service does not so appear but is established, the party affected may have the same set aside on motion in the cause that his defense may be considered and passed upon. Herndon v. Autry, 181 N.C. 271, 107 S.E. 3; Stocks v. Stocks, 179 N.C. 285-288, 102 S.E. 306; Johnson, Trustee, 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. The same principle, both as to the right and the procedure, prevails in reference to judgments in a justice court as well as in courts of more extended jurisdiction. Herndon v. Autry, supra; Lowman v. Ballard, 168 N.C. 16, 84 S.E. 21, L. R. A. 1915D, 427, Ann. Cas. 1917B, 899; Ballard v. Lowry, 163 N.C. 488, 79 S.E. 966; King v. Railroad, 112 N.C. 318, 16 S.E. 929; Whitehurst et al. v. Transportation Co., 109 N.C. p. 342, 13 S.E. 937. The position is not affected because there may be allegations and evidence of fraud presented. The gravamen of the application is the failure of...