Pulley v. Pulley, 174

• Decision Date: 11 October 1961
• Docket Number: No. 174,174
• Citation: 255 N.C. 423,121 S.E.2d 876
• Court: North Carolina Supreme Court
• Parties: Helen Ellzabeth PULLEY v. Charlie Herbert PULLEY.

Page 876

121 S.E.2d 876

255 N.C. 423

Helen Ellzabeth PULLEY v. Charlie Herbert PULLEY.

No. 174

Supreme Court of North Carolina.

Oct. 11, 1961

A. Turner Shaw, Jr., Jacksonville, and Ellis, Godwin & Hooper, by Glenn L. Hooper, Jr., Dunn, for plaintiff-appellant.

Jones, Reed & Griffin, Kinston, for defendant-appellee.

PARKER, Justice.

Plaintiff assigns as errors Judge Morris' conclusions and orde.

G.S. § 1-247 authorizes the entry of a judgment by confession for alimony, and provides that a wilful failure of the defendant to make payments of alimony, as required by such judgment, shall subject him, upon proper cause shown to the court, to such penalties as may be adjudged by the court as in any other case of contempt of its orders.

G.S. § 1-248 provides: 'A statement in writing must be made, signed, and verified by the defendant, to the following effect: 1. It must state the amount for which judgment may be entered, and authorize the entry of judgment therefor. 2. If it is for money due, or to become due, it must state concisely the facts out of which it arose, and must show the sum confessed is justly due, or to become due.'

Defendant challenges the validity of his own judgment by confession for the payment of alimony on the grounds set forth above in the statement of facts.

Defendant relies upon Gibbs v. G. H. Weston & Co., 221 N.C. 7, 18 S.E.2d 698, 699, where it is said in reference to a judgment by confession: 'The verified statement is jurisdictional both as to its filing and as to its contents. (Citing authority.) Since the proceeding is in derogation of common right, the statute authorizing this form of judgment must be strictly construed.' In that opinion the Court further said, which is not quoted in defendant's brief: 'The failure to comply with the mandatory terms of the statute and especially the want of redition of judgment upon the statement and affidavit of the defendant is not a mere irregularity but constitutes a fatal defect rendering the proceeding of no effect as against creditors whose judgments were subsequently docketed.' Emphasis ours.

Defendant also relies on Smith v. Smith, 117 N.C. 348, 23 S.E. 270, which was a proceeding by an administrator of the confessing debtor, representing creditors, to set aside a judgment confessed, because the confession does not state sufficiently the consideration of the note and that it was justly due. The Court after setting forth that the statutory requirement is that the confessed judgment must show the consideration, and the amount confessed is justly due and after stating that this is to prevent fraud in such cases, says, 'If the statutory requirements are not complied with, the judgment is irregular and void, because of a want of jurisdiction in the court to render judgment, which is apparent on the face of the proceedings.'

These two cases, and others relied on by defendant, where the challenges are made by creditors, are not controlling in the instant case, because, inter alia, the challenge to the validity of the confessed judgment here comes not from or in behalf of creditors of the confessing debtor, but from the defendant himself.

This Court said in Hart v. Thomasville Motors, 244 N.C. 84, 92 S.E.2d 673, 676: '* * * it is a universal rule of law that parties cannot, by consent, give a court, as such, jurisdiction over subject matter of which it would otherwise not have jurisdiction. Jurisdiction in this sense cannot be obtained by consent of the parties, waiver, or estoppel.' Citing many authorities.

This Court said in Jones v. Brinson, 238 N.C. 506, 78 S.E.2d 334, 337: 'While it is true that no consent can give a court jurisdiction of the subject matter of an action which the court does not possess without such consent, it is equally true that a court may obtain jurisdiction over the person of a party litigant by his consent. This for the reason that it is a mere personal privilege of a defendant to require that he be served with process in a legal manner, and since it is a personal privilege--even though of a constitutional nature--he may consent to the jurisdiction of the court without exacting performance of the usual legal formalities as to service of process.' Citing authorities. See Waters v. McBee, 244 N.C. 540, 94 S.E.2d 640.

21 C.J.S. Courts § 108, says: 'Jurisdiction of the subject matter cannot be conferred upon a court by, or be based on, the estoppel of a party to deny that it exists. As to other objections to jurisdiction, there may be an estoppel, as in the case of objections to the manner in which, or the steps by which, the court obtained jurisdiction, or to the venue.'

19 Am.Jur., Estoppel, § 77, says: 'One who invokes or voluntarily submits to the exercise by a court of its jurisdiction upon a matter of which it has power to take cognizance is estopped from subsequently objecting thereto.'

An absolute want of jurisdiction over the subject matter may be taken advantage of at any stage of the proceedings, even after judgment. However, 'An objection to jurisdiction based on any ground other than lack of jurisdiction of the subject matter, such as lack of jurisdiction of the person or irregularity in the method by which jurisdiction of the particular case was obtained, is usually waived by failure to raise the objection at the first opportunity, or in due or seasonable time, or within the time prescribed by statute.' 21 C.J. S. Courts § 110.

In Martin & Son v. Briscoe, 143 N.C. 353, 55 S.E. 782, there was a motion upon affidavit and notice to revive a dormant judgment, which defendant had confessed in favor of plaintiff. The verification was: 'Sworn to and subscribed before me, this 14th of November, 1896. T. C. Smith, C. S. C.' Confessing defendant contended that this verification was not sufficient to authorize the entry of judgment by confession, and that such judgment was void for want of jurisdiction. Upon hearing the cause the clerk of the superior court held the judgment invalid and refused to revive it. On appeal to the judge this was reversed, and the defendant appealed. We affirmed the judge. In its opinion the Court with one Justice concurring in the result, and two dissenting, said: 'We would not be understood as passing upon the question of the validity of such judgment confessed if it were attacked by a creditor, or even if the defendant had assailed it on the ground of fraud or imposition or denied the debt. We place this decision upon the ground of estoppel--the original affidavit by defendant that the debt was due the plaintiff, his acquiescence in the judgment for six years, his failure in this proceeding...