Henderson v. Henderson

Citation59 S.E.2d 227,232 N.C. 1
Decision Date03 May 1950
Docket NumberNo. 529,529
PartiesHENDERSON, v. HENDERSON.
CourtUnited States State Supreme Court of North Carolina

Frank H. Kennedy, P. Dalton Kennedy, Jr., Charlotte, for plaintiff appellant.

Ralph V. Kidd, Warren C. Stack, Charlotte, for defendant appellee.

WINBORNE, Justice.

Confining consideration of this appeal within the bounds of the express terms of the motion of plaintiff, made on special appearance, as hereinabove quoted, decision here is determinable upon the answer to this question: Is the notice of the motion made by defendant in May 1949 to set aside the judgment of divorce entered in May 1942 and served on the attorney of plaintiff of record in the action, notice to plaintiff? The judge from whom appeal is taken was of opinion, and held that it was. And, in the light of the purpose of the motion so made by defendant, and of the grounds on which it is based, and upon the findings of fact made by the judge on hearing of the motion, we concur.

In this connection, the purpose of the motion of defendant was to set aside the judgment of divorce upon the ground that plaintiff had procured it by fraudulent imposition on the court. In this State at the time the action was instituted by plaintiff, marriages might be dissolved and the parties thereto divorced from the bonds of matrimony on the application of either party, if and when the husband and wife have lived separate and apart for two years, and the plaintiff in the suit for divorce had resided in the State for a period of one year. P.L.1931, Chapter 72, as amended by P.L.1933, Chapter 163, and P.L.1937, Chapter 100. Under this statute, in order to maintain an action for divorce, the husband and wife shall have (1) lived separate and apart for two years; and (2) the plaintiff, husband or wife, shall have resided in the State of North Carolina for a period of one year. These two requirements are jurisdictional. Oliver v. Oliver, 219 N.C. 299, 13 S.E.2d 549; Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Sears v. Sears, 67 App.D.C. 379, 92 F.2d 530. If either one or the other of these elements were not existent, the court would not have jurisdiction to try the action, and to grant a divorce. And if the court has no jurisdiction over the subject matter of the action, the judgment in the action is void. A void judgment is one which has a mere semblanee but is lacking in some of the essential elements which would authorize the court to proceed to judgment. Harrell v. Welstead, 206 N.C. 817, 175 S.E. 283; City of Monroe v. Niven, 221 N.C. 362, 20 S.E.2d 311.

Moreover, if a judgment be obtained by means of a fraud practiced upon the court, the question may be raised by motion in the cause. McIntosh N. C. P. & P., 745, Judgments Sec. 656; Roberts v. Pratt, 152 N. C. 731, 68 S.E. 240; Massie v. Hainey, 165 N.C. 174, 81 S.E. 135; Cox v. Boyden, 167 N.C. 320, 83 S.E. 246; Young v. Young, supra; King v. King, 225 N.C. 639, 35 S.E.2d 893; Ledford v. Ledford, 229 N.C. 373, 49 S.E.2d 794.

It is the established practice in court actions in this State that a notice of a motion to set aside a judgment may be served on the attorney of record of the opposing party, and that notice to such attorney in an action is notice to the party. Walton v. Sugg, 61 N.C. 98, 93 Am.Dec. 580; Branch v. Walker, 92 N.C. 87; In re Gibson, 222 N.C. 350, 23 S.E.2d 50. See also United States v. Curry, 6 How. 106, 12 L.Ed. 363.

Therefore, in keeping with the established practice in such cases, it would seem that, since L. P. Harris was the attorney of record for plaintiff, nothing else appearing of record, notice of defendant's motion to set aside the judgment of divorce entered in the action might be served upon him, and that notice so served is notice to plaintiff.

But the question now arises as to when the relation of an attorney of a party to the action ceases.

In this connection, it is noted that a party may appear either in person or by attorney in actions or proceedings in which he is interested. G.S. § 1-11. And while an attorney who claims to enter an appearance for any party to an action may be required to produce and file a power or authority as provided in G.S. § 84-11, it is held by this Court that after an attorney has entered an appearance and has been recognized by the court as the attorney in the cause, the opposite party may not call in question his authority. City of Newberne v. Jones, 63 N.C. 606.

And, speaking to the subject in the case of United States v. Curry, supra, the Supreme Court of the United States, in an opinion by Chief Justice Taney, had this to say: 'No attorney or solicitor can withdraw his name after he has once entered it on the record without the leave of the court. And while his name continues there the adverse party has a right to treat him as the authorized attorney or solicitor, and the service of notice upon him is as valid as if served on the party himself.' This principle has been quoted and applied in the cases of Walton v. Sugg, supra; Branch v. Walker, supra, and In re Gibson, supra; see also Allision v. Whittier, 101 N.C. 490, 8 S.E. 338; Coor v. Smith, 107 N.C. 430, 11 S.E. 1089.

Moreover, it is uniformly held in this State that after an attorney has been admitted by the court to represent a party to an action, he cannot, unless with the consent of the court, be discharged before the end of the suit. Walton v. Sugg, supra; Rogers v. McKenzie, 81 N.C. 164; Branch v. Walker, supra; Ladd v. Teague, 126 N.C. 544, 36 S.E. 45; Roediger v. Sapos, 217 N.C. 95, 6 S.E.2d 801; In re Gibson, supra. See also United States v. Curry, supra.

And, 'It may be said, generally, that the relation of counsel to the action does not cease, in any case, until the judgment in the court where it is pending is consummated, that is, made permanently effectual for its purpose as contemplated by law', Merrimon, J., in Branch v. Walker, supra. See also Walton v. Sugg, supra; Ladd v. Teague, supra; In re Gibson, supra; Allison v. Whittier, supra.

Too, the rule may be stated in this general way: The relation of the attorney of record to the action, nothing else appearing, continues so long as the opposing party has the right, by statute or otherwise, to challenge the validity of the judgment.

Therefore, in the light of this principle, applied to the case in hand, it is held that the relation of L. P. Harris, as attorney of record for plaintiff, did not terminate upon the rendition of the judgment of divorce, but it continued, nothing else appearing, so long as defendant has the right to move in the cause to have the judgment set aside on the ground of fraud upon jurisdiction of the court, and to have the motion heard and finally determined.

Even so, it is the contention of appellant that defendant has been guilty of laches in asserting whatever rights she may have had, and was, therefore, barred of such right at the time she moved in the cause...

To continue reading

Request your trial
18 cases
  • Carpenter v. Carpenter, 668
    • United States
    • United States State Supreme Court of North Carolina
    • 26 Junio 1956
    ...our decisions, notably Woodruff v. Woodruff, 215 N.C. 685, 3 S.E.2d 5; Young v. Young, 225 N.C. 340, 34 S.E.2d 154 and Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227, statements which, considered apart from the factual situations under consideration, tend to support plaintiff's contentio......
  • McLean v. McLean, 744
    • United States
    • United States State Supreme Court of North Carolina
    • 2 Febrero 1951
    ...190 N.C. 536, 130 S.E. 315; Hatley v. Hatley, 202 N.C. 577, 163 S.E. 593; Young v. Young, 225 N.C. 340, 34 S.E.2d 154; Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227. Here the fact of the plaintiff's knowledge of the residence and post office address of the defendant in the city where he......
  • Menzel v. Menzel, 98
    • United States
    • United States State Supreme Court of North Carolina
    • 23 Septiembre 1959
    ...to a party's prejudice are properly corrected by motion in the cause. McLean v. McLean, 233 N.C. 139, 63 S.E.2d 138; Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227. The motion asserts the orders on which the court assumed jurisdiction were entered 'without legal authority, basis or jusuf......
  • State Trust Co. v. Toms, 17
    • United States
    • United States State Supreme Court of North Carolina
    • 31 Octubre 1956
    ...the correction of an irregular judgment. Collins v. North Carolina State Highway Comm., 237 N.C. 277, 74 S.E.2d 709; Henderson v. Henderson, 232 N.C. 1, 59 S.E.2d 227; Gough v. Bell, 180 N.C. 268, 104 S.E. 535; Currie v. Golconda Mining & Mill. Co., 157 N.C. 209, 72 S.E. 980; Glisson v. Gli......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT