Harrell v. Welstead

• Citation: 175 S.E. 283,206 N.C. 817
• Decision Date: 11 July 1934
• Docket Number: 11.
• Parties: HARRELL v. WELSTEAD et al.
• Court: United States State Supreme Court of North Carolina

175 S.E. 283

206 N.C. 817

HARRELL v. WELSTEAD et al.

No. 11.

Supreme Court of North Carolina

July 11, 1934

Appeal from Superior Court, Currituck County; Small, Judge.

Action by Nellie A. Harrell against H. L. Welstead and the Standard Oil Company of New Jersey and another. A default judgment was entered against H. L. Welstead and the Standard Oil Company. A motion by H. L. Welstead and the Standard Oil Company to set aside the judgment was denied, and they appeal.

Error.

Upon motion to vacate default judgment against defendant duly served with summons who had intrusted his case to nonresident attorney who was not licensed to practice and did not practice in North Carolina, failure to answer must be attributed to defendant's own negligence.

Civil action to recover damages for an alleged negligent injury.

On November 28, 1932, plaintiff was riding with her husband and their child in a Ford truck. They stopped at the filling station of the defendant H. L. Welstead in Currituck county to get some gasoline. Plaintiff's husband undertook to assist the defendant Welstead in filling the truck tank, when an explosion occurred, seriously injuring the plaintiff.

On March 20, 1933, this suit was instituted by the simultaneous issuance of two summonses by the clerk of the superior court of Currituck county, one commanding the sheriff of Currituck county to summon H. L. Welstead and T. Smith Harrell, Jr., to appear before the said clerk at his office in Currituck within thirty days after service and answer the complaint etc., which said summons was duly served March 21, 1933, the other addressed to the sheriff of Pasquotank county commanding him to summon the Standard Oil Company of New Jersey "to appear before the Clerk of the Superior Court for the County of Pasquotank at his office in Elizabeth City within thirty (30) days after the day of service hereof, and answer the complaint, which has been filed in the office of the said Clerk of the Superior Court of said county, a copy of which is served herewith." Service was made by sheriff of Pasquotank county March 22, 1933, and returned to the clerk of Currituck county. Verified complaint was filed and copies duly served with the summonses.

On April 17, 1933, plaintiff's husband T. Smith Harrell Jr., filed a demurrer to the complaint, which was sustained.

Joint answer of H. L. Welstead and Standard Oil Company of New Jersey was prepared by S. Burnell Bragg, attorney of Norfolk Va., verified by H. L. Welstead April 12, 1933, sent by said attorney to C. M. Byers, manager of the defendant oil company at Charlotte, N. C., verified by said manager and mailed from Charlotte to the clerk of the superior court of Currituck county, April 17, 1933, in time to have reached the clerk in the regular course of the mail before expiration of time for filing. The said answer, but no copy, was received by the clerk of the superior court of Currituck county when he called for his mail April 22, 1933. The clerk at first marked this answer "Filed 4/22/33, R. P. Midgett, C. S. C.," but later erased the word "Filed" and inserted in lieu thereof the word "Rec'd.'D' Time for answering had expired when received by the clerk.

On May 1, 1933, judgment by default and inquiry, for want of an answer, was entered against H. L. Welstead and Standard Oil Company of New Jersey.

Said defendants, on July 8, thereafter, made a motion to set aside the judgment by default and inquiry on the grounds of irregularity, excusable neglect, and as a matter of right. This motion was denied, though it was found that said defendants "have a meritorious defense to the cause of action set up in the complaint." Exception.

The inquiry was executed at the September term, 1933, Currituck superior court, which resulted in a verdict and judgment of $10,000 for the plaintiff. Defendants appeal, assigning errors.

Thompson & Wilson, of Elizabeth City, S. Burnell Bragg, of Norfolk, Va., and Pou & Pou, of Raleigh, for appellants.

M. B. Simpson and McMullan & McMullan, all of Elizabeth City, for appellee.

STACY Chief Justice.

If it be conceded that the answer of the defendants was not properly filed (Michie's Code, § 509), or was not filed in time, then the judgment by default and inquiry is void as to the corporate defendant, for said defendant had never been summoned to appear in Currituck county. Its summons was to appear before the clerk of the superior court of Pasquotank county and answer the complaint filed in his office. Therefore, unless the corporate defendant had come in by answer, it was not in court at all, and the judgment is without warrant of law as to it. First Nat. Bank v. Wilson, 80 N.C. 200. By the same token or reason that the answer is excluded, the judgment is rendered ineffectual as against the nonappearing defendant. "Jurisdiction of the party, obtained by the court in some way allowed by law, is essential to enable the court to give a valid judgment against him." Merrimon, J., in Stancill v. Gay, 92 N.C. 462.

A default judgment rendered against a defendant in an action where he has never been served with process returnable to the proper county, nor appeared in person or by attorney, is not simply voidable, but void, and will be set aside on motion. Fowler v. Fowler, 190 N.C. 536, 130 S.E. 315; Clark v. Carolina Homes, 189 N.C. 703, 128 S.E. 20; Moore v. Packer, 174 N.C. 665, 94 S.E. 449; Ins. Co. v. Scott, 136 N.C. 157, 48 S.E. 581; Condry v. Cheshire, 88 N.C. 375; Doyle v. Brown, 72 N.C. 393.

Speaking of the effect of a judgment rendered against a defendant who had never been served with summons, in McKee v. Angel, 90 N.C. 60, Ashe, J., delivering the opinion of the court, said:

"Judgments are either irregular, erroneous or void. Irregular judgments are such as are entered contrary to the course and practice of the court. An erroneous judgment is one that is rendered contrary to law.

A void judgment is one which has only the semblance of a judgment, as if rendered by a court having no jurisdiction, or against a person who has had no notice to defend his rights. Stallings v. Gully, 3 Jones [48 N. C.] 344; Armstrong v. Harshaw, 1 Dev. [12 N. C.] 187; Jennings v. Stafford, 1 Ired. [23 N. C.] 404.

Erroneous and irregular judgments cannot be collaterally impeached, but stand until they are reversed or set aside. Jennings v. Stafford, supra. But a void judgment is no judgment, and may always be treated as a nullity."

A nullity is a nullity, and out of nothing nothing comes. Ex nihilo nihil fit is one maxim that admits of no exceptions. Chemical Co. v. Turner, 190 N.C. 471, 130 S.E. 154.

Nor did the corporate defendant's appearance by motion to vacate said...