Gulley v. Macy

• Decision Date: 30 June 1879
• Citation: 81 N.C. 356
• Court: North Carolina Supreme Court
• Parties: MIBRA GULLEY and others v. E. O. MACY, Adm'r, and others.

81 N.C. 356

MIBRA GULLEY and others

v.E. O. MACY, Adm'r, and others.

Supreme Court of North Carolina.

June Term, 1879.

OPINION TEXT STARTS HERE

CIVIL ACTION tried at Fall Term, 1878, of WAKE Superior Court, before Seymour J.

This action was instituted in the superior court to declare void and set aside proceedings in the probate court in which the defendant administrator had obtained a license to sell, and did sell, the real estate of his intestate for assets to pay debts; and also to recover the land sold in pursuance of said proceeding from the other defendants, the purchasers at said sale. The facts necessary to an understanding of the case are stated in the opinion of this court. His Honor held, 1. That the return of the sheriff upon the summons in the proceedings by Macy, administrator, was conclusive upon the plaintiff, Mibra, in this court, and could not be attacked except by a proceeding for that purpose brought in the probate court; 2. That the probate court of Wake county had exclusive original jurisdiction and cognizance of any proceeding to have the special proceeding of said administrator declared unauthorized and irregular, and to set aside the same; 3. The failure to serve summons in said special proceeding upon the plaintiff Mibra's husband, the service being upon her alone, did not make the proceeding void as to her; 4. That if feme plaintiff could not recover in this action, neither could the infant plaintiffs, upon the case presented by the pleadings and the evidence.

To this ruling the plaintiffs excepted. There was judgment of nonsuit and the plaintiffs appealed.

Messrs. T. M. Argo and Lewis & Strong, for plaintiffs :

The first ruling of the court below is erroneous. This is a direct proceeding to falsify return of officer, and any evidence tending to show that it is false, and that in consequence the judgment is void, is competent. If ruling of judge be correct, in order to falsify return, a proceeding would have to be instituted in the probate court, to have it so declared. But there is no such proceeding; the plaintiffs would obtain no substantial relief. The proper proceeding is an action to vacate and have declared void the judgment or decree. And to do this it must be shown, that the process was not served, and that the party was not in court. This is a fact to be proved by evidence; and if the relief prayed can be granted in this court such facts may be shown in testimony. The return can only be shown to be false in a direct proceeding to set the judgment or decree aside. Doyle v. Brown, 73 N. C., 375. Whether, therefore, the return of the officer be conclusive upon the plaintiff Mibra Gulley here, depends upon whether the superior court in term has jurisdiction of the action to set aside the proceedings, and this brings us to the second point in this case.

Ruling second also erroneous. To ascertain the correctness of which it is necessary to solve two questions:

(1) What is the extent of the jurisdiction of probate courts under the constitution and the law? The constitution as in force at the time of the institution of the action, Art. IV, § 12, authorizes the general assembly to distribute the jurisdiction of the courts, inferior to the supreme court, as it should deem best in its discretion. Section 2, ch. 18, Bat. Rev., was also in force, and that provides that the summons in all civil actions shall be returnable to the court in term time. See State v. Powe, 64 N. C., 644, and Murphy v. McCubbins, 65 N. C., 246. Probate courts therefore have no jurisdiction in any case where the remedy must be sought by civil action.

(2) What is the character of the proceeding to vacate the proceedings by Macy, administrator, including the decree for sale, the sale and the final decree? Is it a civil action? According to the old equity practice, a decree which is the judgment of a court of equity could be impeached if final and enrolled, by bill of review, to wit, for error upon the face of the proceedings, bill of review in the nature of an original bill--Daniel, Ch. Prac., 3, p.p. 1727 et seg (note 3)--or upon discovering new facts. If the decree had not been enrolled, by supplemental bill in the nature of a bill of review. Ibid., 1724. If the decree were interlocutory, or if final but not signed and enrolled, it might be reversed or impeached upon petition for rehearing. Ibid., 1724. (Note 1.) In the United States, and particularly in North Carolina, decrees in equity are matters of record and are decreed to be enrolled as of the term at which they are rendered. Ibid. (Note 1.) The Judges of probate are required by law to keep a record in which shall be recorded all orders and decrees passed in their office which they are required to make in writing. Bat. Rev., ch. 90, § 12, (3). Hence this decree was enrolled. The proceeding here is an original bill. Kincaid v. Conally, Phil. Eq., 108; Ibid., 64 N. C., 387. See also Freeman on Judgments; Tyler v. Walker, 1 Heisk., (Tenn.), 734.

In cases in our state reports where relief against decree, void for irregularity or fraud, by motion in the cause is to be had, it appears that decree had not been satisfied, and cause was retained for further orders. Following were reviewed by counsel: Pearson v. Nesbit, 1 Dev., 315; Crumpler v Governor, Ibid., 52; 3 Dev., 149 and 242; Keaton v. Banks, 10 Ire., 381; Phil. Eq., 108; 63 N. C., 564; 65 N. C., 54 and 96; 70 N. C., 167; 71 N. C., 236; 72 N. C., 575; Wolf v. Davis, 74 N. C., 597; Moore v. Gidney, 75 N. C., 34; 75 N. C., 219; Chambers v. Penland, 78 N. C., 53; Lord v. Beard, 79 N. C., 5 and 14. Relief sought by civil action where judgment has been satisfied. Covington v. Ingram, 64 N. C., 123; Doyle v. Brown, 72 N. C., 393 and 125; 73 N. C., 303.

Ruling third is also erroneous. A wife may be sued alone in certain cases. C. C. P., § 56; 64 N. C., 578; 71 N. C., 297; 70 N. C., 670. In last case the, general rule is said to be that husband must be joined, but when suit concerns her separate estate she may sue alone. In all other cases husband must be joined and served with process. Counsel commented upon Pippen v. Wessom, 74 N. C., 437; Harris v. Jenkins, 72 N. C., 183. Judgment against married woman is void. Morse v. Tappan, 3 Gray, 411. If judgment against Mibra Gulley is held to be void under the cases cited, there is no need of a direct proceeding to impeach it. That may be done collaterally.

Upon the facts alleged in pleadings with reference to service of process on infants. See C. C. P., § 59; Acts 1871-'72, ch. 95, § 2; Acts 1870-'71, ch. 233, § 3. There should have been personal service on infants. Allen v. Shields, 72 N. C., 504; Bat. Rev., ch. 45. And judgment as to them is also void.

Messrs. D. G. Fowle, Battle & Mordecai and G. H. Snow, for defendants :

The question is one of jurisdiction: The petition of the administrator asking appointment of guardian ad litem is regular. Acts 1870-'71, ch. 233, § 3. Service on Mibra Gulley alone was sufficient. Bat. Rev., ch. 17, § 82.

Acts of femes covert in pais may be void, yet do not impair conclusive force of judgments to which they are parties, (Freeman on Judgments, § 150,) and judgment cannot be set aside without establishing such facts as would entitle applicant to relief independent of the fact of coverture. Judgment in special proceeding regular upon face of record; the remedy of one whose rights are affected by it is to move upon notice to strike it out; no separate action allowed. Dick v. McLaurin, 63 N. C., 185; Mason v. Miles, Ibid., 564, and cases in 64 N. C., 69; Phil. Law, 304; 69 N. C., 406. The court giving the judgment can alone set it aside. Reid v. Kelly, 1 Dev., 313; Keaton v. Banks, 10 Ire., 381. After judgment performed, no motion in cause can be made by party whose rights are affected, except in the court rendering the judgment. Blythe v. Hoots, 72 N. C., 575, and 65 N. C., 96; 71 N. C., 236.

The circumstances which gave court of equity jurisdiction to relieve against judgments in court of law, are explained in Kincaid v. Connaly, 64 N. C., 387, but upon examination it will be seen that section 133 of the code now provides for such cases, except perhaps for fraud, and no fraud is charged in this case.

DILLARD, J.

The case made by the pleadings in legal substance is that Thomas C. Nichols, in February, 1863, conveyed the land in controversy to the defendant George W. Thompson, and in a short time went into the army and died, and Mibra his widow, since then intermarried with George W. Gulley, after the conveyance aforesaid, purchased the said land from Thompson with money furnished her by her father as a separate estate for herself with remainder in fee to her children, who are co-plaintiffs in this action. She had no deed executed by Thompson, making estates as was designed, but merely had him to surrender the deed made to him by Thomas C. Nichols, which had never been registered, and she thereafter kept the said deed in her possession, and lived on the land with her children, believing that the land belonged to her and them, without any suspicion of its possible liability to pay the debts of Thomas C. Nichols, and without any knowledge whatsoever of any proceedings had or threatened for that purpose.

It is alleged that matters thus stood until early in 1873 when E. O. Macy having become administrator on the estate of Thomas C. Nichols, as it is charged, at the procurement of Sol. J. Allen, a near neighbor, who well knew of the equitable title of Mibra and her children, filed his petition in the probate court for a license to sell the land to pay the debts of Thomas C. Nichols; and it is averred that although the probate court had jurisdiction of the subject matter, yet the proceedings were not such as to give that court jurisdiction of the persons of Mibra and her children. It is particularly charged that the summons issued in the cause was returned unexecuted on George W. Gulley, with whom by this time Mibra had intermarried, and...