McKee v. Angel

• Decision Date: 28 February 1884
• Parties: WILLIAM MCKEE v. A. P. ANGEL.
• Court: North Carolina Supreme Court

90 N.C. 60

WILLIAM MCKEE

v.A. P. ANGEL.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Spring Term, 1883, of MACON Superior Court, before Avery, J.

This was an appeal from the judgment of a justice of the peace, and the facts collected from the transcript of the proceedings had before the justice sent to the superior court, and the judgment rendered by him against the defendant and others on the 30th of December, 1878, are substantially as follows:

On the 16th day of April, 1883, upon the application of the defendant Angel, the said judgment was set aside, upon the ground that the defendant had never been served with a summons, and had no notice of the judgment, and if the summons had been served, it was not served by a constable or other officer, but by a citizen deputed by the justice for that purpose; and that the judgment rendered by the justice upon such service of process was a nullity. The plaintiff had no notice of this application.

Afterwards the plaintiff moved the justice to set aside the judgment vacating the first judgment of December, 1878, both parties being present. The plaintiff offered affidavits tending to show that the defendant Angel did have notice of the judgment of 1878, and the defendant resisted the motion upon the ground that the judgment was void because the summons was served by a person who was deputed by the justice to make the service, and that he was not present at the trial, and he renewed his motion to have the original judgment vacated.

Thereupon the justice, having taken an advisari for two weeks upon the difficulties of the case, being of the opinion that he had the power to depute a constable in a civil action, when it was an extraordinary case, this being a case of that nature, for two of the defendants were about to remove from the state, decided to strike out the judgment of 1883, and refused to vacate the original judgment; from which the defendant appealed.

Upon this state of facts, His Honor in the superior court ordered and adjudged, “that the said E. T. Long, justice of the peace, proceed to enter a judgment vacating and setting aside the original judgment rendered in the above entitled action as to the defendant A. P. Angel, and also the judgment upon the motion to set aside the said original judgment.” From this judgment the plaintiff appealed to this court.

Messrs. Jones & Siler, for plaintiff .

Messrs. Reade, Busbee & Busbee, for defendant .

ASHE, J., after stating the case.

The first judgment rendered by the justice in December, 1878, was clearly void as to this defendant. The summons in a civil action before a justice of the peace must be directed to “any constable or other lawful officer.” Bat. Rev., ch. 63, §12. “But in criminal actions the warrant must be directed to the sheriff, coroner or any constable, and if no sheriff, coroner or constable can be found, the warrant may be directed to any person whatever who shall have power to execute the same within the county in which it is issued.” Bat. Rev., ch. 33, §97. This is the only extraordinary case in which a justice of the peace is authorized to depute one, who is not an officer, to execute process. Marsh v. Williams, 63 N. C., 371; Garlick v. Jones, 3 Jones, 404. See also State v. Barefoot, 89 N. C., 565.

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, 344; Armstrong v. Harshaw, 1 Dev., 187; Jennings v. Stafford, 1 Ired., 404.

Erroneous and irregular judgments cannot be collaterally impeached, but stand until they are reversed...